(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 under Schedule 1A to the Fisheries Management Act 1991 or Schedule 2 to the Torres Strait Fisheries Act 1984.
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 or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 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 vessel in prescribed circumstances
(4) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) who is on a foreign vessel when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the vessel. 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.
164BA Grant of enforcement visas (environment matters)
Non‑citizen on vessel (environment matters) outside migration zone
(1) A non‑citizen on a vessel (environment matters) outside the migration zone is granted an enforcement visa when, because an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft has reasonable grounds to suspect that the vessel has been used or otherwise involved in the commission of an environment detention offence, the environment officer, maritime officer or person in command:
(a) exercises his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(b) makes a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or
(c) exercises powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel;
whichever occurs first.
Note 1: Under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may bring a vessel into the migration zone. Under paragraph 403(3)(b) of that Act, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may require the person in charge of a vessel to bring the vessel 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 an environment officer under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
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 an environment officer or a maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 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 vessel or aircraft in prescribed circumstances
(4) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) who is on a vessel (environment matters) or a foreign aircraft (environment matters) when an environment officer or maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the vessel or aircraft. 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 Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
164C When enforcement visa ceases to be in effect
Enforcement visa (fisheries matters)—non‑citizen in fisheries detention
(1) The enforcement visa (fisheries matters) 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.
Enforcement visa (fisheries matters)—non‑citizen not in fisheries detention
(2) The enforcement visa (fisheries matters) 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.
Enforcement visa (environment matters)—non‑citizen in environment detention
(3) The enforcement visa (environment matters) of a non‑citizen who is in environment detention ceases to be in effect:
(a) at the time the non‑citizen is released, or escapes, from environment detention; or
(b) at the time the Minister makes a declaration under subsection 164BA(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.
Enforcement visa (environment matters)—non‑citizen not in environment detention
(4) The enforcement visa (environment matters) of a non‑citizen who is not in environment detention ceases to be in effect:
(a) at the time a decision is made not to charge the non‑citizen with an environment detention offence; or
(b) at the time the Minister makes a declaration under subsection 164BA(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.
Division 5—Immigration clearance
165 Interpretation
In this Division:
clearance authority means:
(a) a clearance officer; or
(b) an authorised system.
clearance officer means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.
eligible passport means a passport of a kind specified in a determination under section 175A.
on‑port, in relation to a person, means a port in Australia to which the person will travel after entering Australia at another port.
overseas vessel means:
(a) a vessel on which persons travel from outside Australia to a port and then to an on‑port or ports; or
(b) a vessel on which persons travel from a port to another port or ports and then to a place outside Australia.
166 Persons entering to present certain evidence of identity etc.
Requirement to be immigration cleared
(1) A person, whether a citizen or a non‑citizen, who enters Australia must, without unreasonable delay:
(a) present the following evidence (which might include a personal identifier) to a clearance authority:
(i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;
(ii) if the person is a non‑citizen—evidence of the person’s identity and of a visa that is in effect and is held by the person; and
(b) provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
(c) comply with any requirement, made by a clearance officer under section 257A before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face.
Note: A person might be taken to have complied with this section under subsection 167(3) or (4) or might not be required to comply under section 168 or 169.
Who may use an authorised system
(2) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
(a) the person holds an eligible passport; and
(c) either:
(i) before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) of this section (other than a passenger card) to a clearance officer; or
(ii) if subparagraph (i) of this paragraph applies—a clearance officer determines that the person has complied with subsection (1) of this section.
Complying with paragraphs (1)(a) and (b)
(3) Subject to section 167, a person is to comply with paragraphs (1)(a) and (b) of this section in a prescribed way.
(4) A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.
167 When and where evidence to be presented
(1) Subject to this section, a person required to comply with section 166 who enters Australia at a port must comply:
(a) if paragraph (b) or (c) does not apply—at that port; or
(b) if the person is required by an officer to comply at a particular on‑port—at that on‑port; or
(c) if the person is allowed by an officer to comply at the port or a particular on‑port—at either of them.
(2) Subject to subsection (4), a person required to comply with section 166 who enters Australia otherwise than at a port must comply at a prescribed place within a prescribed period after entering.
(3) If:
(a) a person proposes to enter Australia; and
(b) with the permission of a clearance officer, complies with paragraphs 166(1)(a), (b) and (c) on the vessel on which the person travels to Australia and before entering Australia;
the person is taken to have complied with section 166.
(4) A person who travels to Australia on a pre‑cleared flight:
(a) must comply with paragraphs 166(1)(a) and (b) before beginning the flight; and
(b) if he or she so complies, is taken to have complied with section 166.
168 Section 166 not to apply
(1) An allowed inhabitant of the Protected Zone who enters a protected area in connection with the performance of traditional activities is not required to comply with section 166.
(2) If an allowed inhabitant of the Protected Zone:
(a) enters a protected area in connection with the performance of traditional activities; and
(b) goes from the protected area to a part of the migration zone outside that area;
he or she must comply with section 166 at a prescribed place within a prescribed period.
(3) A person in a prescribed class is not required to comply with section 166.
169 Section 166 not usually to apply
(1) If:
(a) a person goes outside the migration zone; and
(b) under section 80 is not taken to leave Australia;
the person is not, on re‑entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.
International passenger cruise ships
(2) However, subsection (1) does not apply if the person goes outside the migration zone on an international passenger cruise ship (see subsection (4)).
Note: The effect of this subsection is that people on international passenger cruise ships are required to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of this section).
(3) However, the Minister or Secretary may, in writing, determine that, despite subsection (2), subsection (1) does apply to a class of persons that includes the person.
(4) In this section, a ship is an international passenger cruise ship if:
(a) the ship has sleeping facilities for at least 100 persons (other than crew members); and
(b) the ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and
(c) that service:
(i) is provided in return for a fee payable by persons using the service; and
(ii) is available to the general public.
(5) A determination made under subsection (3) is not a legislative instrument.
170 Certain persons to present evidence of identity
Persons on overseas vessels may be required to present evidence of identity
(1) A person, whether a citizen or a non‑citizen, who travels, or appears to intend to travel, on an overseas vessel from a port to another port may be required by a clearance officer at either port or by officers at both ports:
(a) to present to a clearance authority prescribed evidence (which might include a personal identifier) of the person’s identity; and
(b) to provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
(c) to comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—to provide to the authorised system a photograph or other image of the person’s face.
(2) A person is to comply with paragraphs (1)(a) and (b) in a prescribed way.
Who may use an authorised system
(2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
(a) the person holds an eligible passport; and
(c) either:
(i) before the person leaves the port at which the requirement is made, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or
(ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).
171 Assistance with evidence
If a person:
(a) cannot comply with section 166 by presenting evidence; and
(b) requests the Department to assist him or her to obtain that evidence;
that assistance may be given but only on payment of, or agreement to pay, a prescribed fee to meet the cost of doing so.