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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