(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the unauthorised maritime arrival being taken from Australia to a regional processing country after the period ends.
Unauthorised maritime arrival may request transfer to regional processing country
(10) Despite subsection (5), if an unauthorised maritime arrival to whom section 198AD applies asks the Minister, in writing, to be taken from Australia to a regional processing country under section 198AD, the unauthorised maritime arrival must be taken, under that section, to that country.
198AI Ministerial report
The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of Parliament a report setting out:
(a) the activities conducted under the Bali Process during the year ending on 30 June; and
(b) the steps taken in relation to people smuggling, trafficking in persons and related transnational crime to support the Regional Cooperation Framework during the year ending on 30 June; and
(c) the progress made in relation to people smuggling, trafficking in persons and related transnational crime under the Regional Cooperation Framework during the year ending on 30 June.
198AJ Reports about unauthorised maritime arrivals
(1) The Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following:
(a) arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for:
(i) assessing those claims in those countries; and
(ii) the accommodation, health care and education of those unauthorised maritime arrivals in those countries;
(b) the number of those claims assessed in those countries in the financial year;
(c) the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
(2) However, a report under this section need deal with a particular regional processing country in accordance with subsection (1) only so far as information provided by the country makes it reasonably practicable for the report to do so.
(3) A report under this section must not include:
(a) the name of a person who is or was an unauthorised maritime arrival; or
(b) any information that may identify such a person; or
(c) the name of any other person connected in any way with any person covered by paragraph (a); or
(d) any information that may identify that other person.
Subdivision C—Transitory persons etc.
198B Power to bring transitory persons to Australia
(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
199 Dependants of removed non‑citizens
(1) If:
(a) an officer removes, or is about to remove, an unlawful non‑citizen; and
(b) the spouse or de facto partner of that non‑citizen requests an officer to also be removed from Australia;
an officer may remove the spouse or de facto partner as soon as reasonably practicable.
(2) If:
(a) an officer removes, or is about to remove an unlawful non‑citizen; and
(b) the spouse or de facto partner of that non‑citizen requests an officer to also be removed from Australia with a dependent child or children of that non‑citizen;
an officer may remove the spouse or de facto partner and dependent child or children as soon as reasonably practicable.
(3) If:
(a) an officer removes, or is about to remove, an unlawful non‑citizen; and
(b) that non‑citizen requests an officer to remove a dependent child or children of the non‑citizen from Australia;
an officer may remove the dependent child or children as soon as reasonably practicable.
(4) In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove includes a reference to take to a regional processing country.
Subdivision D—Duty to cooperate in relation to removal and removal concern countries
199A Reason for Subdivision
(1) This Subdivision is enacted because the Parliament expects that a removal pathway non‑citizen:
(a) will voluntarily leave Australia; and
(b) if the non‑citizen does not voluntarily leave Australia, will cooperate with steps taken under this Act for the purposes of arranging the non‑citizen’s lawful removal from Australia; and
(c) will not attempt to obstruct or frustrate the non‑citizen’s lawful removal from Australia.
(2) This Subdivision is also enacted because the Parliament expects that a foreign country will cooperate with Australia to facilitate the lawful removal from Australia of a non‑citizen who is a national of that country.
199B Removal pathway non‑citizens—protection findings etc.
(2) To avoid doubt, a removal pathway non‑citizen for whom a protection finding has been made within the meaning of subsection 197C(4), (5), (6) or (7):
(a) may be given a removal pathway direction by the Minister; and
(b) may commit the offence of refusing or failing to comply with the direction under section 199E.
Note: For the circumstances in which the Minister must not give a removal pathway direction, see section 199D.
(3) To avoid doubt, nothing in section 199C or 199D authorises or requires the removal of an unlawful non‑citizen under section 198 to a country to which the non‑citizen could not be removed because of subsection 197C(3).
199C Minister may give removal pathway directions
Direction powers
(1) The Minister may, by written notice given to a removal pathway non‑citizen, direct the non‑citizen to do one or more of the following things:
(a) complete, sign and submit an application for one or more of the following documents (including doing and providing all things required for the application process by the person or authority to which it is to be submitted):
(i) a passport;
(ii) a travel‑related document within the meaning of the Australian Passports Act 2005;
(iii) a foreign travel document within the meaning of the Foreign Passports (Law Enforcement and Security) Act 2005;
(b) complete, sign and submit any other document or form required for, or to facilitate, travel (including doing and providing all things required for submission by the person or authority to which it is to be submitted);
(c) provide documents or information to an officer or another person specified in the direction;
(d) attend an interview or appointment with an officer or another person specified in the direction;
(e) report in person to an officer or another person in accordance with instructions specified in the direction.
(2) Without limiting subsection (1), the Minister may, by written notice given to a removal pathway non‑citizen, direct the non‑citizen to do a thing, or not do a thing, if the Minister is satisfied that the non‑citizen doing, or not doing, the thing is reasonably necessary to:
(a) determine 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; or
(b) facilitate the removal of the non‑citizen from Australia under that section.
Note 1: For the circumstances in which the Minister must not give a direction under subsection (1) or (2), see section 199D.
Note 2: The Minister may give a direction under subsection (1) or (2) to a removal pathway non‑citizen during the period that the non‑citizen’s removal is not required or authorised under section 198 as a result of the Minister considering whether to exercise a Ministerial intervention power in relation to the non‑citizen (see section 197E).
(3) The Minister may, by written notice given to a removal pathway non‑citizen, revoke a removal pathway direction given to the non‑citizen.
Period for compliance
(4) A removal pathway direction must specify:
(a) the period within which the non‑citizen must do a specified thing; or
(b) for a direction not to do a specified thing—the period during which the non‑citizen must not do the thing.
Consequences of non‑compliance
(5) A removal pathway direction must state that a non‑citizen who refuses or fails to comply with the direction may commit an offence under section 199E.
Interaction with monitoring conditions on certain bridging visas
(6) To avoid doubt, if a removal pathway non‑citizen covered by paragraph (b) of the definition of that expression in subsection 5(1) refuses or fails to comply with a removal pathway direction, the refusal or failure does not constitute a failure to comply with a requirement of a monitoring condition (within the meaning of subsection 76B(4)) for the purposes of paragraph 76B(1)(d).
Multiple and concurrent directions
(7) A non‑citizen may be given more than one removal pathway direction.
(8) However, the Minister must not give a removal pathway direction to a non‑citizen to do a thing, or not do a thing:
(a) that is the subject of a direction previously given by the Minister to the non‑citizen; and
(b) for which the period specified in the previous direction for the thing has not ended.
Natural justice does not apply
(9) The rules of natural justice do not apply to an exercise of power under this section.
199D Circumstances in which Minister must not give a removal pathway direction
Non‑citizens subject to a protection finding
(1) The Minister must not give a removal pathway direction to a removal pathway non‑citizen to do, or not do, a thing in relation to a particular country if:
(a) in the case of an unlawful non‑citizen—the non‑citizen cannot be removed to that country because of subsection 197C(3); or
(b) in the case of a lawful non‑citizen—the non‑citizen could not be removed to that country because of that subsection if the non‑citizen were an unlawful non‑citizen.
Non‑citizens who have applied for protection visas
(2) The Minister must not give a removal pathway direction to a removal pathway non‑citizen if:
(a) the non‑citizen has made a valid application for a protection visa; and
(b) the application is not yet finally determined.
Interaction with monitoring conditions on certain bridging visas
(3) The Minister must not give a removal pathway direction to a removal pathway non‑citizen if all of the following apply:
(a) the non‑citizen holds a Subclass 070 (Bridging (Removal Pending)) visa;
(b) the visa is subject to a monitoring condition (within the meaning of subsection 76B(4));
(c) an instruction or specification under the monitoring condition has been given to the non‑citizen;
(d) the direction would require the non‑citizen to do, or not do, a thing that is substantially the same as the instruction or specification;
(e) the Minister has not, in writing:
(i) withdrawn the instruction or specification; or
(ii) confirmed that the instruction or specification has been complied with.
Children
(4) The Minister must not give a removal pathway direction to a removal pathway non‑citizen if the non‑citizen is a child under 18.
(5) However, if the parent or guardian of the child is a removal pathway non‑citizen, the Minister may give a removal pathway direction in relation to the child to the parent or guardian.
Court or tribunal proceedings etc.
(6) The Minister must not give a removal pathway direction to a removal pathway non‑citizen directing the non‑citizen:
(a) not to commence, or to discontinue, court or tribunal proceedings; or
(b) to take or not take particular steps in the conduct of such proceedings; or
(c) not to make a visa application under this Act; or
(d) to withdraw a visa application made under this Act.
199E Offence for non‑compliance with removal pathway direction
(1) A person commits an offence if:
(a) the person is a removal pathway non‑citizen; and
(b) the person is given a removal pathway direction; and
(c) the direction has not been revoked; and
(d) the person refuses or fails to comply with the direction.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) If a person is convicted of an offence under subsection (1), the court must impose a sentence of imprisonment of at least 12 months.
Exception
(3) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) For the purposes of subsection (3), it is not a reasonable excuse that the person:
(a) has a genuine fear of suffering persecution or significant harm if the person were removed to a particular country; or
(b) is, or claims to be, a person in respect of whom Australia has non‑refoulement obligations; or
(c) believes that, if the person were to comply with the removal pathway direction, the person would suffer other adverse consequences.
Note: See subsections 199D(1) and (2) for restrictions on giving removal pathway directions to non‑citizens who are subject to a protection finding or who have applied for a protection visa.
No continuing offence
(5) Section 4K (continuing offences) of the Crimes Act 1914 does not apply in relation to an offence under subsection (1) of this section.
199F Designation of removal concern country
(1) The Minister may, by legislative instrument, designate a country as a removal concern country if the Minister thinks it is in the national interest to designate the country to be a removal concern country.
(2) Before the Minister designates a country under subsection (1), the Minister must consult with:
(a) the Prime Minister; and
(b) the Minister administering the Diplomatic Privileges and Immunities Act 1967.
(2A) Before the Minister designates a country under subsection (1), the Minister must have regard to the matters (if any) prescribed by the regulations for the purposes of this subsection.
(2B) Neither of the following limits, or otherwise affects, the matters the Minister may consider for the purposes of deciding under subsection (1) whether it is in the national interest to designate a country to be a removal concern country:
(a) the requirement under subsection (2A) that the Minister must have regard to matters (if any) that are prescribed by the regulations for the purposes of that subsection;
(b) the prescription of particular matters by the regulations for the purposes of subsection (2A).
(3) If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation.
Personal power etc.
(4) The powers under subsections (1) and (3) may only be exercised by the Minister personally.
(5) The rules of natural justice do not apply to the exercise of the power under subsection (1) or (3).
Copy of designation etc. to be laid before Parliament
(6) If the Minister designates a country under subsection (1), 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 removal concern country.
(7) The Minister must comply with subsection (6) within 2 sitting days of each House of the Parliament after the day on which the designation is made.
(8) A failure to comply with subsection (6) or (7) does not affect the validity of the designation.
Automatic repeal
(8A) Unless revoked earlier, the designation is repealed at the end of 3 years after the day on which the designation commences.
Definition
(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.
199G Visa applications by certain nationals of a removal concern country
(1) An application for a visa by a non‑citizen is not a valid application if, at the time the application is made:
(a) the non‑citizen is a national of one or more removal concern countries; and
(b) the non‑citizen is outside Australia.
Exceptions to bar on visa application
(2) Subsection (1) does not apply in relation to an application for a visa by a non‑citizen if:
(a) both of the following apply:
(i) the non‑citizen is a national of a country (within the meaning of subsection 199F(9)) that is not a removal concern country;
(ii) the non‑citizen holds a passport issued by that country that is in force; or
(b) the non‑citizen is the spouse, de facto partner or dependent child (within the meaning of the regulations) of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa that is in effect; or
(iii) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or
(c) the non‑citizen is the parent of a child who is under 18 and in Australia; or
(d) the application is for the grant of a Refugee and Humanitarian (Class XB) visa (within the meaning of section 39A); or
(e) the non‑citizen is included in a class of persons determined in an instrument made under subsection (3) of this section; or
(f) the application is for the grant of a visa of a class determined in an instrument made under subsection (3) of this section.
(3) The Minister may, by legislative instrument, determine the following: