Migration Act 1958

Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.

For when this section applies to a transitory person, see section 198AH.

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.

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.

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.

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.

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.

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:

place the unauthorised maritime arrival on a vehicle or vessel;

restrain the unauthorised maritime arrival on a vehicle or vessel;

remove the unauthorised maritime arrival from:

the place at which the unauthorised maritime arrival is detained; or

a vehicle or vessel;

use such force as is necessary and reasonable.

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:

subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and

section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.

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.

If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.

The duty under subsection (5) may only be performed by the Minister personally.

The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the 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.

The rules of natural justice do not apply to the performance of the duty under subsection (5).

A direction under subsection (5) is not a legislative instrument.

An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).

No civil liability is incurred by an officer, the Minister or the Commonwealth in relation to any act or thing done, or omitted to be done, by the officer or the Minister in good faith and in the exercise of the officer’s or Minister’s powers, or the performance of the officer’s or Minister’s functions or duties, under this section.

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 regional processing country or another foreign country; or

by any person in a regional processing country or another foreign country;

under or in relation to an arrangement (within the meaning of section 198AHA) mentioned in subsection 198AHA(1) that is in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or

in relation to the regional processing functions (within the meaning of section 198AHA) of the applicable country; or

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 section 198AHB) of the applicable country.

In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.