Please note that the information we provide in this article about regional processing provisions is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
This article will discuss the regional processing provisions of the Migration Act 1958. In this article, we outlined the first four provisions of the Subdivision on regional processing. We recommend that you should read that one first before proceeding to this article.
Regional Processing Provisions
The other regional processing provisions of the Act, which will be the topics of this article, are the following:
- 198AE – Ministerial determination that section 198AD does not apply
- 198AF – No regional processing country
- 198AG – Non-acceptance by regional processing country
- 198AH – Application of section 198AD to certain transitory persons
- 198AHA – Power to take action etc. in relation to arrangement or regional processing functions of a country
- 198AI – Ministerial report
- 198AJ – Reports about unauthorised maritime arrivals
Regional Processing Provisions: What Is 198AD All About?
As you can see, majority of the regional processing provisions concern the applicablity or non-applicability of 198AD. But what is this provision all about? Section 198AD of the Migration Act 1958 deals with the transfer of unauthorised maritime arrivals to regional processing countries.
Subject to certain exceptions, section 198AD authorises the transfer of unauthorised maritime arrivals (people who arrive by boat without a valid visa) who are detained under section 189 (immigration detention) to a regional processing country.
According to this Act, the Minister designates regional processing countries through a legislative instrument based on the national interest and specific assurances regarding non-refoulement obligations and refugee assessments.
However, this section does not apply to:
- an unauthorised maritime arrival if there is no regional processing country (s198AF)
- an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer that the country will not accept the unauthorised maritime arrival. Such advice must be in writing. (s198AG)
198AE: Ministerial Determination of the Applicability of 198AD
Section 198AE states that the Minister may determine in writing that section 198AD does not apply to an unauthorised maritime arrival. The Minister can do so if he or she thinks that doing so concerns public interest.
Moreover, the Minister may also vary or revoke the determination in writing. Only the Minister can exercise this power personally. Note that the rules of natural justice do not apply to an exercise of such power.
Regional Processing Provisions: Statement Requirement
Also, if the Minister makes a determination or varies or revokes a determination, he or she must lay a statement before each House of the Parliament. Such statement must:
- set out the determination, the determination as varied or the instrument of revocation; and
- set out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
The required statement must not include:
- the name of the unauthorised maritime arrival; or
- any information that may identify the unauthorised maritime arrival; or
- if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned–the name of that other person or any information that may identify that other person.
The Minister must lay a statement to each House of the Parliament within 15 sitting days of that House after:
- if the determination is made, varied or revoked between 1 January and 30 June (inclusive) in a year–1 July in that year; or
- if the determination is made, varied or revoked between 1 July and 31 December (inclusive) in a year–1 January in the following year.
This section also establishes that the Minister does not have a duty to consider whether to exercise such power in respect of any unauthorised maritime arrival, whether the Minister needs to do so by:
- the unauthorised maritime arrival or
- any other person, or
- in any other circumstances.
198AH: Application of section 198AD to certain transitory persons
This section provides that Section 198AD applies to a transitory person if, and only if:
- the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose
- the person is detained under section 189 (detention of unlawful non-citizens)
- the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved)
- a transitory person described above gives birth to the transitory child while in Australia;
- the transitory child is detained under section 189
- the transitory child is a transitory person because the child was born in the migration zone and the child was not an Australian citizen at the time of birth.
198AHA: Power to Take Action in Relation to Arrangement or Regional Processing Functions of a Country
This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Moreover, the Commonwealth may do all or any of the following:
- take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;
- make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;
- do anything else that is incidental or conducive to the taking of such action or the making of such payments.
Regional Processing Provisions: What Is a Ministerial Report?
Section 198AI states that the Minister must, as soon as practicable after 30 June in each year, lay a report before each House of Parliament. The report must set out:
- the activities conducted under the Bali Process during the year ending on 30 June; and
- 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
- 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.
What Should Reports on Unauthorised Maritime Arrivals Contain?
Section 198AJ provides that the Minister must lay a report before each House of the Parliament within 15 sitting days of that House after the end of a financial year. The report must contain the following:
- 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
- a report under this section must deal with a particular regional processing country only so far as information provided by the country makes it reasonably practicable for the report to do so.
A report under this section must not include:
- the name of a person who is or was an unauthorised maritime arrival; or
- any information that may identify such a person; or
- the name of any other person connected in any way to an unauthorised maritime arrival
- any information that may identify that other person.
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