# Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

> act-s197C — as in force on 2026-06-04 — C2026C00232 · Compilation No. 171 — https://www.legislation.gov.au/C2026C00232/latest/text

197C Relevance of Australia’s non-refoulement obligations to
         removal of unlawful non-citizens under section 198
          (1) For the purposes of section 198, it is irrelevant whether Australia
              has non-refoulement obligations in respect of an unlawful
              non-citizen.
          (2) An officer’s duty to remove as soon as reasonably practicable an
              unlawful non-citizen under section 198 arises irrespective of
              whether there has been an assessment, according to law, of
              Australia’s non-refoulement obligations in respect of the
              non-citizen.
          (3) Despite subsections (1) and (2), section 198 does not require or
              authorise an officer to remove an unlawful non-citizen to a country
              if:
                (a) the non-citizen has made a valid application for a protection
                    visa that has been finally determined; and
                (b) in the course of considering the application, a protection
                    finding within the meaning of subsection (4), (5), (6) or (7)
                    was made for the non-citizen with respect to the country
                    (whether or not the visa was refused or was granted and has
                    since been cancelled); and
                (c) none of the following apply:
                      (i) the decision in which the protection finding was made
                          has been quashed or set aside;
                     (ii) a decision made under subsection 197D(2) in relation to
                          the non-citizen is complete within the meaning of
                          subsection 197D(6);
                    (iii) the non-citizen has asked the Minister, in writing, to be
                          removed to the country.










          (4) A protection finding is made for a non-citizen with respect to a
              country if a record was made in relation to the non-citizen under
              section 36A that the Minister is satisfied as mentioned in
              paragraph 36A(1)(a), (b) or (c) with respect to the country.
          (5) A protection finding is also made for a non-citizen with respect to
              a country if the Minister was satisfied of any of the following
              (however expressed and including impliedly):
                (a) the non-citizen satisfied the criterion in paragraph 36(2)(a)
                    with respect to the country and also satisfied the criterion in
                    subsection 36(1C);
                (b) the non-citizen satisfied the criterion in paragraph 36(2)(aa)
                    with respect to the country;
                (c) the non-citizen:
                      (i) would have satisfied the criterion in paragraph 36(2)(a)
                          with respect to the country except that subsection 36(3)
                          applied in respect of the non-citizen; and
                     (ii) satisfied the criterion in subsection 36(1C);
                (d) the non-citizen:
                      (i) satisfied the criterion in paragraph 36(2)(a) with respect
                          to the country but did not satisfy the criterion in
                          subsection 36(1C); and
                     (ii) would have satisfied the criterion in paragraph 36(2)(aa)
                          with respect to the country except that the non-citizen
                          was a non-citizen mentioned in paragraph 36(2)(a);
                (e) the non-citizen:
                      (i) satisfied the criterion in paragraph 36(2)(a) with respect
                          to the country but did not satisfy the criterion in
                          subsection 36(1C); and
                     (ii) would have satisfied the criterion in paragraph 36(2)(aa)
                          with respect to the country except that the non-citizen
                          was a non-citizen mentioned in paragraph 36(2)(a) and
                          subsection 36(2C) or (3) applied in respect of the
                          non-citizen;










                  (f) the non-citizen would have satisfied the criterion in
                      paragraph 36(2)(aa) with respect to the country except that
                      subsection 36(2C) or (3) applied in respect of the non-citizen.
          (6) A protection finding is also made for a non-citizen with respect to
              a country if:
                (a) the Minister was satisfied (however expressed and including
                    impliedly) that, because subsection 36(4), (5) or (5A) applied
                    to the non-citizen in relation to the country, subsection 36(3)
                    did not apply in relation to the country; and
                (b) a protection finding within the meaning of subsection (4) or
                    (5) was made for the non-citizen with respect to another
                    country.
          (7) A protection finding is also made for a non-citizen with respect to
              a country in circumstances prescribed by the regulations.
        (7A) For the purposes of subsection (3), if an unlawful non-citizen has
             made more than one valid application for a protection visa that has
             been finally determined, that subsection applies only in relation to
             the last such application.
          (8) For the purposes of subsection (5), it is irrelevant whether or not
              the non-citizen satisfied any other criteria for the grant of a
              protection visa.
          (9) For the purposes of subparagraph (3)(c)(iii), a non-citizen who
              withdraws their written request to be removed to a country is taken
              not to have made that request.