(a) a class of persons for the purposes of paragraph (2)(e);
(b) a class of visa for the purposes of paragraph (2)(f).
Minister may determine bar on visa application does not apply
(4) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a non‑citizen, determine that subsection (1) does not apply to an application by the non‑citizen for a visa of a class specified in the determination.
(5) A determination under subsection (4) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(6) The Minister may, by written notice given to a non‑citizen, vary or revoke a determination made under subsection (4) in relation to the non‑citizen if the Minister thinks that it is in the public interest to do so.
(7) The power under subsection (4) or (6) may only be exercised by the Minister personally.
(8) The Minister does not have a duty to consider whether to exercise the power under subsection (4) or (6) in respect of any non‑citizen, whether the Minister is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
Division 9—Deportation
200 Deportation of certain non‑citizens
The Minister may order the deportation of a non‑citizen to whom this Division applies.
201 Deportation of non‑citizens in Australia for less than 10 years who are convicted of crimes
Where:
(a) a person who is a non‑citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non‑citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
(ii) was a citizen of New Zealand who had been in Australia as an exempt non‑citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non‑citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non‑citizen or a special category visa holder or in any combination of those capacities; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.
202 Deportation of non‑citizens upon security grounds
(1) Where:
(a) it appears to the Minister that the conduct (whether in Australia or elsewhere and either before or after the commencement of this subsection) of a non‑citizen referred to in paragraph 201(b) constitutes, or has constituted, a threat to security; and
(b) the Minister has been furnished with an adverse security assessment in respect of the non‑citizen by the Organisation, being an assessment made for the purposes of this subsection;
then, subject to this section, section 200 applies to the non‑citizen.
(2) Where:
(a) subsection (1) applies in relation to a non‑citizen;
(b) the adverse security assessment made in respect of the non‑citizen is not an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
(c) the non‑citizen applies to the ART for a review of the security assessment and the ART, after reviewing the assessment, finds that the security assessment should not have been an adverse security assessment;
section 200 does not apply to the non‑citizen.
(3) Where:
(a) subsection (1) applies in relation to a non‑citizen;
(b) the adverse security assessment made in respect of the non‑citizen is an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
(c) the Attorney‑General has, in accordance with section 65 of that Act, required the ART to review the assessment;
section 200 does not apply to the non‑citizen unless the ART confirms the assessment.
(4) A notice given by the Minister pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act 1979 informing a person of the making of an adverse security assessment, being an assessment made for the purposes of subsection (1) of this section, shall contain a statement to the effect that the assessment was made for the purposes of subsection (1) of this section and that the person may be deported under section 200 because of section 202.
(5) Section 19 (ART may extend period) of the ART Act does not apply in relation to an application to the ART for a review of an adverse security assessment made for the purposes of subsection (1) of this section.
(6) In this section:
adverse security assessment, security assessment and Tribunal have the same meanings as they have in Part IV of the Australian Security Intelligence Organisation Act 1979.
Organisation means the Australian Security Intelligence Organisation.
security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.
203 Deportation of non‑citizens who are convicted of certain serious offences
(1) Where:
(a) a person who is a non‑citizen has, either before or after the commencement of this subsection, been convicted in Australia of an offence;
(b) at the time of the commission of the offence the person was not an Australian citizen; and
(c) the offence is:
(ia) an offence against Division 80 or 82 of the Criminal Code; or
(ib) an offence against section 83.1 (advocating mutiny) or 83.2 (assisting prisoners of war to escape) of the Criminal Code; or
(ii) an offence against section 6 of the Crimes Act 1914 that relates to an offence mentioned in subparagraph (ia) or (ib) of this paragraph; or
(iia) an offence against section 11.1 or 11.5 of the Criminal Code that relates to an offence mentioned in subparagraph (ia) or (ib) of this paragraph; or
(iii) an offence against a law of a State or of any internal or external Territory that is a prescribed offence for the purposes of this subparagraph;
then, subject to this section, section 200 applies to the non‑citizen.
(2) Section 200 does not apply to a non‑citizen because of this section unless the Minister has first served on the non‑citizen a notice informing the non‑citizen that he or she proposes to order the deportation of the non‑citizen, on the ground specified in the notice, unless the non‑citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister’s notice, that his or her case be considered by a Commissioner appointed for the purposes of this section.
(3) If a non‑citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non‑citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice.
(4) A Commissioner for the purposes of this section shall be appointed by the Governor‑General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years’ standing.
(5) The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established.
(6) The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
(7) Where a notice has been served on a non‑citizen under subsection (2), section 200 does not apply to the non‑citizen because of this section unless:
(a) the non‑citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner;
(b) the non‑citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or
(c) a Commissioner reports under this section in relation to the non‑citizen that he or she considers that the ground specified in the notice has been established.
204 Determination of time for sections 201 and 202
(1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non‑citizen or a special category visa holder.
(2) In section 201 and subsection 202(1):
permanent resident means a person (including an Australian citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law, but does not include:
(a) in relation to any period before 2 April 1984—a person who was, during that period, a prohibited immigrant within the meaning of this Act as in force at that time; or
(b) in relation to any period starting on or after 2 April 1984 and ending on or before 19 December 1989—the person who was, during that period, a prohibited non‑citizen within the meaning of this Act as in force in that period; or
(c) in relation to any period starting on or after 20 December 1989 and ending before the commencement of section 7 of the Migration Reform Act 1992—the person who was, during that period, an illegal entrant within the meaning of this Act as in force in that period; or
(d) in relation to any later period—the person who is, during that later period, an unlawful non‑citizen.
(3) For the purposes of this section:
(a) a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and
(b) a reference to a period during which a person was confined in a prison includes a reference to a period:
(i) during which the person was an escapee from a prison; or
(ii) during which the person was undergoing a sentence of periodic detention in a prison.
205 Dependants of deportee
(1) Where the Minister makes or has made an order for the deportation of a person who has a spouse or de facto partner, the Minister may, at the request of the spouse or de facto partner of that person, remove:
(a) the spouse or de facto partner; or
(b) the spouse or de facto partner and a dependent child or children;
of that person.
(2) Where the Minister makes or has made an order for the deportation of a person who does not have a spouse or de facto partner but who does have a dependent child or children, the Minister may, at the person’s request, remove a dependent child or children of the person.
206 Deportation order to be executed
(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.
206A Relevance of Ministerial intervention powers to deportation
(1) For the purposes of:
(a) determining whether section 200 applies to a non‑citizen; or
(b) executing a deportation order in relation to a non‑citizen under subsection 206(1);
it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the non‑citizen.
(2) Subsection (1) applies whether a request is made by:
(a) the non‑citizen; or
(b) an officer of the Department; or
(c) any other person.
(3) Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.
Temporary suspension of deportation
(4) Despite subsection (1), if the Minister decides to consider whether to exercise a Ministerial intervention power (whether on request or otherwise) in relation to a non‑citizen, the Minister must not order the deportation of the non‑citizen, and the non‑citizen must not be deported, during the period covered by subsection (5).
Period during which deportation is suspended
(5) For the purposes of subsection (4), 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 non‑citizen, unless:
(a) before the end of that 6 month period, the 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 (6).
(6) For the purposes of paragraph (5)(b), the period ends at the earlier of the following times:
(a) the end of the day the Minister decides not to exercise the power in relation to the 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 (7) 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.
(7) For the purposes of paragraph (6)(c), this subsection specifies the following days:
(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the 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.
Division 10—Costs etc. of removal and deportation
207 Interpretation
In this Division:
carrier, in relation to an unlawful non‑citizen, means a controller of the vessel on which the non‑citizen was last brought to Australia.
controller, in relation to a vessel, means the master, owner, agent or charterer of the vessel.
costs means the fares and other costs to the Commonwealth of transporting:
(a) a non‑citizen; and
(b) a custodian of the non‑citizen;
from Australia to the place outside Australia to which the non‑citizen is removed or deported.
210 Removed or deported non‑citizen liable for costs of removal or deportation
Subject to section 212, a non‑citizen who is removed or deported, other than an unlawful non‑citizen who came to Australia on a criminal justice visa, is liable to pay the Commonwealth the costs of his or her removal or deportation.
212 Costs of removed or deported spouses, de facto partners and dependants
(1) If:
(a) 2 persons are spouses or de facto partners of each other; and
(b) either:
(i) they are both removed or deported; or
(ii) one of them is deported and the other is removed;
each of them is liable to pay the Commonwealth the costs of their removals, their deportations, or the deportation and removal.
(2) If:
(a) 2 persons are spouses or de facto partners of each other; and
(b) either:
(i) they are both removed or deported; or
(ii) one is deported and the other is removed; and
(c) their dependent child, or dependent children, within the meaning of the regulations are also removed;
then:
(d) the child or children are not liable to pay the Commonwealth the costs of the child’s or children’s removal; and
(e) the persons are liable to pay the Commonwealth those costs.
(3) If:
(a) a non‑citizen is removed or deported; and
(b) the non‑citizen either:
(i) does not have a spouse or de facto partner; or
(ii) does not have a spouse, or a de facto partner, who is deported or removed; and
(c) the non‑citizen has a dependent child, or dependent children, within the meaning of the regulations who are removed;
then:
(d) the child or children are not liable to pay the Commonwealth the costs of their removal; and
(e) the non‑citizen is liable to pay the Commonwealth those costs.
213 Carriers may be liable for costs of removal and deportation
(1) If a non‑citizen who enters Australia:
(a) is required to comply with section 166 (immigration clearance); and
(b) either:
(i) does not comply; or
(ii) on complying, is detained under section 189 as an unlawful non‑citizen;
then, as soon as practicable after the Secretary or Australian Border Force Commissioner becomes aware that paragraphs (a) and (b) apply to the non‑citizen, the Secretary or Australian Border Force Commissioner may give a carrier of the non‑citizen a written notice requiring the carriers of the non‑citizen to pay the costs of the non‑citizen’s removal, or deportation, from Australia should that happen.
(2) The notice is to:
(a) give particulars of the calculation of the costs; and
(b) state that an account for the costs will be given to at least one of the carriers of the non‑citizen when they have been incurred.
(3) If a notice is given, each carrier of the non‑citizen is liable to pay the Commonwealth the costs described in the notice and for which an account is given.