Migration Act 1958

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.

To avoid doubt:

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

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.

Subsection (1) applies whether a request is made by:

the unlawful non‑citizen; or

an officer of the Department; or

any other person.

Subsection (1) applies whether or not a request has been drawn to the Minister’s attention.

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).

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).

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:

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

the period ends earlier under subsection (7).

For the purposes of paragraph (6)(b), the period ends at the earliest of the following times:

the end of the day the Minister decides not to exercise the Ministerial intervention power in relation to the unlawful non‑citizen;

the end of the day the Minister decides to stop considering whether to exercise the power in relation to the non‑citizen;

if the Minister exercises the power in relation to the non‑citizen, and subsection (8) specifies a day—the end of that day;

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.

For the purposes of paragraph (7)(c), this subsection specifies the following days:

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;

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:

the last day of the period determined by the Minister in which the non‑citizen could make the visa application;

the day that is 3 months after the Minister exercises the power.

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.

To avoid doubt, subsection (5) of this section:

prevents the removal of an unlawful non‑citizen during the period covered by subsection (6); but

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.

The Minister could give the unlawful non‑citizen a removal pathway direction under section 199C during the period covered by subsection (6).

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).