Commonwealth Consolidated Acts

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MIGRATION ACT 1958 - SECT 196

Duration of detention

  (1)   An unlawful non - citizen detained under section   189 must be kept in immigration detention until:

  (a)   he or she is removed from Australia under section   198 or 199; or

  (aa)   an officer begins to deal with the non - citizen under subsection   198AD(3); or

  (b)   he or she is deported under section   200; or

  (c)   he or she is granted a visa.

  (2)   To avoid doubt, subsection   (1) does not prevent the release from immigration detention of a citizen or a lawful non - citizen.

  (3)   To avoid doubt, subsection   (1) prevents the release, even by a court, of an unlawful non - citizen from detention (otherwise than as referred to in paragraph   (1)(a), (aa) or (b)) unless the non - citizen has been granted a visa.

  (4)   Subject to paragraphs   (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section   501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non - citizen.

  (4A)   Subject to paragraphs   (1)(a), (b) and (c), if the person is detained pending his or her deportation under section   200, the detention is to continue unless a court finally determines that the detention is unlawful.

  (5)   To avoid doubt, subsection   (4) or (4A) applies:

  (a)   whether or not there is a real likelihood of the person detained being removed from Australia under section   198 or 199, or deported under section   200, in the reasonably foreseeable future; and

  (b)   whether or not a visa decision relating to the person detained is, or may be, unlawful.

  (5A)   Subsections   (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

  (6)   This section has effect despite any other law.

  (7)   In this section:

"visa decision" means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).


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