Section 91 — Safe third country
Text of provision
If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.
Plain English
Section 91 provides that where a non-citizen has had a real opportunity to avail themselves of protection in a safe third country but chose not to do so, or where a third country has an agreement with Australia to accept the non-citizen for protection assessment, the Minister may return the person to that third country without assessing their protection claims in Australia.
The safe third country concept reflects the principle that protection-seeking is an international responsibility that does not automatically fall on the first country of physical arrival.
Practical effect
The safe third country provisions under s 91 are complex and have been the subject of extensive litigation. Australia has arrangements with Papua New Guinea and Nauru under which certain offshore entry persons are processed. The Federal Court has held that the arrangements must comply with Australia's non-refoulement obligations under international law. The practical operation of the safe third country regime depends heavily on the specific arrangements in place and whether the third country genuinely offers effective protection.