The Migration Act (1958) consists of certain provisions about the removal of unlawful non-citizens. In this article, we will outline the relevant Sections which are:
Section 197C: Relevance of Australia’s Non-refoulement Obligations to Removal of Unlawful non-citizens Under Section 198
This section deals with the relevance of Australia’s non-refoulement obligations concerning the removal of unlawful non-citizens under Section 198.
Firstly, Section 197C states that for the purposes of Section 198, it does not matter whether Australia has non-refoulement obligations. This typically prohibits returning individuals to countries where they may face persecution or harm.
Moreover, it establishes that an officer has a duty to remove an unlawful non-citizen as soon as reasonably practicable under s198. This is regardless of whether there has been a formal assessment of Australia’s non-refoulement obligations for that non-citizen.
S198 does not require or authorise an officer to remove an unlawful non-citizen to a particular country under certain conditions. These conditions include:
- The non-citizen has applied for a protection visa that has authorities have finally determined.
- A protection finding was made for the non-citizen concerning that country during the application process.
- Specific circumstances, such as the quashing of the decisions, a related decision under Section 197D(2) being complete, or the non-citizen requesting removal to that country, do not apply.
This Section defines protection findings, including instances where the Minister believes that certain criteria or subsections apply.
For the purposes of subsection (5), it doesn’t matter if the non-citizen satisfied any other criteria for the grant of a protection visa. Lastly, if a non-citizen withdraws their written request to be removed to a particular country, it is considered as if they never made that request.
Section 197D: Decision that Protection Finding Would no Longer be Made
This section outlines the process and requirements for making a decision that a protection finding would no longer be made for an unlawful non-citizen with a valid application for a protection visa.
- Purpose and Scope of the Decision: The decision described in this section can only be made for the purposes of subsection 197C(3), which relates to exceptions to the removal of unlawful non-citizens.
- Conditions for the Decision: If the Minister believes that an unlawful non-citizen, who meets the criteria specified in subsection 197C(3)(a) and (b) in relation to a valid protection visa application, is no longer eligible for a protection finding under subsection 197C(4), (5), (6), or (7), the Minister has the authority to make a decision to that effect.
- Last Application Consideration: If the unlawful non-citizen has submitted more than one valid application for a protection visa that authorities have finally determined, this decision applies only to the most recent application.
- Notification Requirements: If the Minister makes a decision under subsection (2), they must provide written notification to the non-citizen, including the following details:
- The decision itself.
- The reasons for the decision (except for information that they cannot disclose).
- Information about the possibility of review under Part 7 of the legislation.
- The timeframe for submitting an application for review.
- Eligibility criteria for those who can apply for the review.
- The location where the party can submit the review application.
- Effect of Non-Compliance: Failure to comply with the notification requirements specified above does not affect the validity of the decision.
- Completion of the Decision: Subparagraph 197C(3)(c)(ii) references the completion of a decision under subsection (2). A decision is complete if any of the following conditions apply:
- The period for filing a review application under Part 7 has expired without the submission of a valid review application.
- A party submitted a valid review application within the specified period but they have since withdrawn it.
- The decision has been affirmed (or is deemed to have been affirmed) following a review under Part 7.

Section 198: Removal from Australia of Unlawful Non-citizens
This section of the Migration Act outlines various scenarios and requirements for the removal of unlawful non-citizens in Australia. Here’s a summary of the key points:
- Subsection 1: An officer must remove an unlawful non-citizen as soon as reasonably practicable if the non-citizen requests for removal. This request must be in writing.
- Subsection 1A: Authorities must remove unlawful non-citizens who are in Australia under specific sections for a temporary purpose as soon as reasonably practicable after they no longer require being in Australia for that purpose.
- Subsections 1B and 1C: If an unlawful non-citizen in Australia temporarily gives birth to a child who is also a transitory person, authorities must remove both the non-citizen and the child when they no longer need to be in Australia for that purpose. Transitory persons are asylum seekers or refugees subject to offshore processing.
- Subsections 2 to 2B: These subsections outline various conditions under which an officer must remove an unlawful non-citizen. This includes:
- Non-citizens who have not made valid applications for substantive visas or whose applications the DHA has finally determined.
- Non-citizens who have not made valid applications for substantive visas, even after an invitation for representations or revocation.
- Non-citizens who faced visa cancellation under Section 501(3A) and who have not made valid applications for substantive visas, even after an invitation for representations or revocation.
Other Provisions
- Subsection 3: The fact that unlawful non-citizen can apply for a substantive visa does not prevent their removal in the circumstances.
- Subsections 5 and 5A: Authorities must remove unlawful non-citizens who are detainees and have not applied for substantive visas or revocation of visa cancellations. This is not for cases where a valid protection visa application is pending.
Subsection 6: Detainees who have:
- faced visa refusals, and
- the DHA cannot grant them visas,
must face removal if they have not made another valid application for a substantive visa.
Subsections 7 and 8: Detainees subject to specific subdivisions must face removal if they:
- do not have immigration clearance,
- have not made valid visa applications, and
- have not complied with specified notices from the Minister.
Lastly, this section does not apply to unauthorised maritime arrivals subject to Section 198AD.

Contact Migration Lawyers for Legal Advice
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