Border Protection Legislation Amendment Act 1999 (160 of 1999)

Schedule 1   Migration Act 1958

Part 3   Enforcement visas

Division 1   Basic provisions

25   After Division 4 of Part 2

Insert:

Division 4A - Enforcement visas

164A Definitions

In this Division:

fisheries detention means detention under paragraph 84(1)(ia) of the Fisheries Management Act 1991.

master has the same meaning as in the Fisheries Management Act 1991.

164B Grant of enforcement visas

Non-citizen on foreign boat outside migration zone

(1) A non-citizen on a foreign boat outside the migration zone is granted an enforcement visa when, because a fisheries officer has reasonable grounds to believe that the boat has been used, is being used or is intended to be used in the commission of a fisheries detention offence, a fisheries officer:

(a) makes a requirement of the boat's master under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991; or

(b) exercises his or her power under paragraph 84(1)(m) of that Act in relation to the boat;

whichever occurs first.

Note 1: Under subparagraph 84(1)(k)(ii) and paragraph 84(1)(l) of the Fisheries Management Act 1991, a fisheries officer may require the master of a boat to bring or take the boat into the migration zone. Under paragraph 84(1)(m) of that Act, a fisheries officer may bring a boat into the migration zone.

Note 2: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen in migration zone

(2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by a fisheries officer under paragraph 84(1)(ia) of the Fisheries Management Act 1991.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen in prescribed circumstances

(3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when a fisheries officer exercises under the Fisheries Management Act 1991 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen on foreign boat in prescribed circumstances

(4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who was on a foreign boat when a fisheries officer exercises under the Fisheries Management Act 1991 a prescribed power in prescribed circumstances in relation to the boat. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Enforcement visas granted by force of this section

(5) To avoid doubt, an enforcement visa is granted by force of this section.

Note: No administrative action under this Act is necessary to grant the visa.

Exception if Minister's declaration in force

(6) Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to:

(a) the non-citizen; or

(b) a class of persons of which the non-citizen is a member.

Declaration

(7) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.

Section does not apply to Australian residents

(8) This section does not apply to non-citizens who are Australian residents as defined in the Fisheries Management Act 1991.

164C When enforcement visa ceases to be in effect

Non-citizen in fisheries detention

(1) The enforcement visa of a non-citizen who is in fisheries detention ceases to be in effect:

(a) at the time the non-citizen is released, or escapes, from fisheries detention; or

(b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or

(c) on the occurrence of a prescribed event;

whichever occurs first.

Non-citizen not in fisheries detention

(2) The enforcement visa of a non-citizen who is not in fisheries detention ceases to be in effect:

(a) at the time a decision is made not to charge the non-citizen with a fisheries detention offence; or

(b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or

(c) on the occurrence of a prescribed event.

whichever occurs first.

164D Applying for other visas

(1) The holder of an enforcement visa may not apply for a visa other than a protection visa while he or she is in Australia.

(2) While a non-citizen who has held an enforcement visa remains in Australia when the visa ceases to be in effect, the non-citizen may not apply for a visa other than a protection visa.