Section 198AHC — Relevance of Ministerial intervention powers to transfer of unauthorised maritime arrivals

198AHC Relevance of Ministerial intervention powers to transfer of unauthorised maritime arrivals

(1) For the purposes of subsection 198AD(2), it is irrelevant whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival.

(2) To avoid doubt:

(a) an officer’s duty to take, as soon as reasonably practicable, an unauthorised maritime arrival from Australia to a regional processing country under subsection 198AD(2) arises irrespective of whether the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to the unauthorised maritime arrival; and

(b) the fact that the Minister has been requested to exercise, or consider exercising, a Ministerial intervention power in relation to an unauthorised maritime arrival is irrelevant to whether or not the taking of the unauthorised maritime arrival from Australia to a regional processing country is reasonably practicable for the purposes of subsection 198AD(2).

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

(a) the unauthorised maritime arrival; or

(b) an officer of the Department; or

(c) any other person.

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

Temporary suspension of duty to transfer unauthorised maritime arrivals

(5) 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 unauthorised maritime arrival, subsection 198AD(2) does not require or authorise an officer to take the unauthorised maritime arrival from Australia to a regional processing country during the period covered by subsection (6). Note: Despite this subsection, an unauthorised maritime arrival who asks the Minister, in writing, to be taken from Australia to a regional processing country must be taken to that country (see subsection (10)).

Period during which duty to transfer is suspended

(6) 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 unauthorised maritime arrival, unless:

(a) before the end of that 6 month period, the unauthorised maritime arrival 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

(b) the period ends earlier under subsection (7).

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

(a) the end of the day the Minister decides not to exercise the power in relation to the unauthorised maritime arrival;

(b) the end of the day the Minister decides to stop considering whether to exercise the power in relation to the unauthorised maritime arrival;

(c) if the Minister exercises the power in relation to the unauthorised maritime arrival, and subsection (8) specifies a day—the end of that day;

(d) if the Minister exercises the power in relation to the unauthorised maritime arrival but the exercise does not result in the unauthorised maritime arrival being able to make a visa application—the end of the day that the Minister exercises the power.

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

(a) in a case where, as a consequence of the exercise of the Ministerial intervention power, the unauthorised maritime arrival may make a visa application within a specified period—the last day of the period in which the unauthorised maritime arrival could make the visa application;

(b) in any other case where, as a consequence of the exercise of the power, the unauthorised maritime arrival may make a visa application—whichever of the following days occurs first:

(i) the last day of the period determined by the Minister in which the unauthorised maritime arrival could make the visa application;

(ii) the day that is 3 months after the Minister exercises the power.

Scope of suspension of duty to transfer unauthorised maritime arrival

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

(a) prevents an unauthorised maritime arrival being taken from Australia to a regional processing country during the period covered by subsection (6); but

(b) does not prevent any other action being taken, or thing being done, during that period to facilitate or otherwise prepare for the unauthorised maritime arrival being taken from Australia to a regional processing country after the period ends.

Unauthorised maritime arrival may request transfer to regional processing country

(10) Despite subsection (5), if an unauthorised maritime arrival to whom section 198AD applies asks the Minister, in writing, to be taken from Australia to a regional processing country under section 198AD, the unauthorised maritime arrival must be taken, under that section, to that country.