Will I automatically get a visa if I'm detained for fishing offences in Australian waters?

The situation

I am currently working as a deckhand on a foreign-flagged commercial fishing vessel that has been operating in the waters just outside the Australian migration zone. On the 14th of October, while we were out at sea, our vessel was intercepted and detained by maritime officers because they suspected we were involved in a fisheries offence. Since being taken into custody, the officers have informed us that we are being held under specific maritime powers. I have spent the last three days in a holding area, and I am quite worried about my legal status because I am not an Australian citizen. I have already tried asking the crew supervisor and one of the junior officers about our paperwork, but they just said they were waiting for official instructions and didn't give me a straight answer regarding my right to stay or be processed. I need to know if the act of being detained for these specific fishing violations means that an enforcement visa is granted to me automatically at the moment they exercise those powers against our vessel, or if I have to lodge a formal application through a government programme to get one. I am also worried if there is any special declaration from the Minister that might stop this from happening to me.

Detailed Analysis

Based on the facts you provided, you are a non-citizen on a foreign-flagged vessel located outside the Australian migration zone. Because your vessel was intercepted and detained by maritime officers due to suspected fisheries offences, you fall under specific provisions of the Migration Act 1958.

Under Section 164B, a non-citizen on a foreign vessel outside the migration zone is granted an enforcement visa when the vessel is detained under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence^[1]. An enforcement visa is a specific type of permission granted to people involved in certain maritime or environmental law enforcement matters.

You do not need to lodge a formal application through a government programme. The law states that "An enforcement visa is granted by force of this section"^[1]. This means the visa is created automatically by the law itself once the legal conditions are met. Furthermore, the law specifies that the visa is "granted at the time the power is exercised"^[1]. Since the officers have already exercised their powers to detain the vessel, the visa should have been granted at that moment.

However, there is one major exception. You would not receive this automatic visa if the Minister has made a written declaration stating that it is "undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia"^[1]. If such a declaration exists and applies to you or your group of crew members, the automatic grant of the visa is blocked.

It is also important to note that this visa is not permanent. For someone in your situation, the visa may cease to be in effect if you are released from detention or if the Minister makes a specific declaration regarding you^[2].

Statutory Citations

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