Section 202 — Deportation of non-citizens whose conduct is detrimental
Text of provision
(1) Where:
(a) it appears to the Minister that the conduct (whether in Australia or elsewhere and either before or after the commencement of this subsection) of a non-citizen referred to in paragraph 201(b) constitutes, or has constituted, a threat to security; and
(b) the Minister has been furnished with an adverse security assessment in respect of the non-citizen by the Organisation, being an assessment made for the purposes of this subsection; then, subject to this section, section 200 applies to the non-citizen.
(2) Where:
(a) subsection (1) applies in relation to a non-citizen;
(b) the adverse security assessment made in respect of the non-citizen is not an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
(c) the non-citizen applies to the ART for a review of the security assessment and the ART, after reviewing the assessment, finds that the security assessment should not have been an adverse security assessment; section 200 does not apply to the non-citizen.
(3) Where:
(a) subsection (1) applies in relation to a non-citizen;
(b) the adverse security assessment made in respect of the non-citizen is an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and
(c) the Attorney-General has, in accordance with section 65 of that Act, required the ART to review the assessment; Migration Act 1958 377 Part 2 Arrival, presence and departure of persons Division 9 Deportation section 200 does not apply to the non-citizen unless the ART confirms the assessment.
(4) A notice given by the Minister pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act 1979 informing a person of the making of an adverse security assessment, being an assessment made for the purposes of subsection (1) of this section, shall contain a statement to the effect that the assessment was made for the purposes of subsection (1) of this section and that the person may be deported under section 200 because of section 202.
(5) Section 19 (ART may extend period) of the ART Act does not apply in relation to an application to the ART for a review of an adverse security assessment made for the purposes of subsection (1) of this section.
(6) In this section: adverse security assessment, security assessment and Tribunal have the same meanings as they have in Part IV of the Australian Security Intelligence Organisation Act 1979. Organisation means the Australian Security Intelligence Organisation. security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.
Plain English
Section 202 provides that a non-citizen may be deported if the Minister is satisfied that the person's deportation is in the public interest. This ground is separate from the criminal conviction ground in s 201 and may be used where, for example, the person's activities have been contrary to Australia's national interests even without a criminal conviction. The section is rarely invoked and its use is subject to ministerial discretion.
Practical effect
Section 202 is a broad and rarely used power. Its practical significance is as a backstop for cases that do not satisfy the criminal threshold in s 201 but where the Minister considers deportation appropriate. The character test provisions in s 501 are more commonly used where character concerns are the driver, as they provide a more defined framework. Deportation under s 202 is subject to judicial review for unreasonableness and denial of procedural fairness.