Migration Act 1958

An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

In the case of an unlawful non‑citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia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).

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).

Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019.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).

Subsection (1C) applies if:

an unlawful non‑citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B or repealed section 198C for a temporary purpose; and

the non‑citizen gives birth to a child while the non‑citizen is in Australia; and

the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).

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).

An officer must remove as soon as reasonably practicable an unlawful non‑citizen:

who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

who has not subsequently been immigration cleared; and

who either:

has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

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.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

the non‑citizen is covered by subparagraph 193(1)(a)(iv); and

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

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:

the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.

The only visa that the non‑citizen could apply for is a protection visa or a visa specified in regulations under section 501E.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and

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

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:

the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

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).

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.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:

is a detainee; and

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;

Despite subsection (5), an officer must not remove an unlawful non‑citizen if:

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

either:

the grant of the visa has not been refused; or

the application has not been finally determined.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

the non‑citizen is a detainee; and

the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

one of the following applies:

the grant of the visa has been refused and the application has been finally determined;

the visa cannot be granted; and

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.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

the non‑citizen is a detainee; and

Subdivision AI of Division 3 of this Part applies to the non‑citizen; and

either:

the non‑citizen has not been immigration cleared; or

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

either:

the Minister has not given a notice under paragraph 91F(1)(a) to the non‑citizen; or

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.

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

the non‑citizen is a detainee; and

Subdivision AJ of Division 3 of this Part applies to the non‑citizen; and

either:

the Minister has not given a notice under subsection 91L(1) to the non‑citizen; or

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.

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.

This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.

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:

in relation to whom a decision has been made under section 501, 501A, 501B or 501BA; or

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

whose visa has ceased to be in effect under section 76AAA.

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:

by the officer or officer of the Commonwealth in good faith and:

in the exercise of the officer’s or the officer of the Commonwealth’s powers; or

in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or

by a foreign country; or

by any person in a foreign country;

under or in relation to a third country reception arrangement (within the meaning of section 198AHB); or

in relation to the third country reception functions (within the meaning of that section) of the country.