The Migration Act 1958 is the primary legislation that governs Australian migration matters and it contains provisions regarding liability and recovery of amounts. Specifically, the Act establishes immigration debts and outlines the procedures for recovering those debts.
This article will provide an overview of the key provisions of the Migration Act relating to liability and recovery of amounts. Moreover, this article will explore the implications of these provisions for individuals and businesses involved in migration to or from Australia.
Whether you are a visa applicant, a sponsor, an employer, or a migration agent, understanding your obligations and liabilities under the Migration Act is essential. This way, you can avoid potential legal and financial consequences. Read on to learn more about the relevant legislation on the liability and recovery of amounts.
Section 140S: Liability to Pay Amounts
Section 140S of liability and recovery of amounts applies to sponsors who need to pay an amount in relation to a sponsorship obligation. The payee (i.e., the entity who must receive the payment) may recover the amount as a debt in an eligible court.
The payee may recover an amount under this section even if proceedings for a civil penalty order are not ongoing.
The regulations may prescribe a court of a State or Territory in which a payee may recover an amount under this section. To summarise, this section establishes the procedures for the recovery of debts owed by approved sponsors under the Migration Act. It also clarifies the circumstances under which payees can recover these debts in court.
Section 140SA: Interest up to Judgment
Section 140SA of liability and recovery of amounts establishes that parties involved in proceedings related to section 140S may request the court to include interest in the sum owed. The court may order inclusion of interest at a rate that they determine.
The courts may calculate interest for the period between the date when the cause of action arose and the date of judgment. Alternatively, the court can order a lump sum instead of interest. It’s important to note that this section doesn’t allow for interest on interest, or a sum instead of such interest, and it doesn’t apply to debts on which interest is payable as of right.
Section 140SB: Interest on Judgment
Section 140SB of liability and recovery of amounts states that when an eligible court makes a judgment under section 140S of the Migration Act 1958, the debt owed by the defendant carries interest. More specifically, the debt carries interest:
- From the date on which the judgment is entered; and
- At a rate that would apply if the debt were a judgment debt to which section 52 of the Federal Court of Australia Act 1976 applies.
Section 52 of the Federal Court of Australia Act 1976 deals with the rate of interest that applies to judgments of the Federal Court of Australia. The same rate applies to judgment debts under section 140S of the Migration Act 1958.
140SC: Certain Plaintiffs May Choose Small Claims Procedure in Magistrates Court
Section 140SC of liability and recovery of amounts applies to proceedings under section 140S in a magistrates court, where the person indicates they want a small claims procedure to apply. The procedure is subject to the following conditions:
- The court may not award an amount exceeding $5,000 (or a higher amount prescribed);
- The court may act informally and is not bound by any rules of evidence or legal formalities;
- The court may amend the papers initiating the action at any stage, as long as sufficient notice is given to any adversely affected party; and
- A person has no entitlement of legal representation unless the court allows it.
If the court allows legal representation, it may do so subject to conditions to ensure a party is not unfairly disadvantaged. However, in a court of a state, if the law of the state prohibits or restricts legal representation, the regulations may prohibit or restrict legal representation in the same way. In a court of a territory, the regulations may prohibit or restrict legal representation.
Section 140T: Notice Regarding Amount of Debt or Other Amount
Section 140T of liability and recovery of amounts states that The Minister can issue a written notice stating the amount of a debt or amount owed to the Australian government when it becomes payable. The section also states that in legal proceedings, the notice that the Minister issues is considered prima facie evidence that the amount stated in the notice is owed. It is the responsibility of the person owing the debt to provide evidence to the contrary.
Section 140U: Liability Is in Addition to Any Other Liability
Section 140U of liability and recovery of amounts states that any obligation or responsibility created under this Division (Division 3A- Subdivision E) is additional to:
- Any obligation or responsibility that may exist under other Acts; or
- Regulations made under those Acts.
In other words, this section does not cancel out any other legal obligations or liabilities that may apply in addition to the ones created under this Division.
Importance of Seeking Legal Advice
It is important to seek legal advice with matters related to law and legal procedures. The laws and regulations can be complex and confusing. Additionally, it is often difficult to navigate through them without proper knowledge and understanding. Seeking legal advice from a qualified and experienced lawyer can help ensures that you can achieve the best possible outcome for your case.
In the case of migration matters, seeking legal advice can be particularly important. The migration process can be daunting and complex, involving numerous legal requirements and procedures that you must follow. Failure to comply with these requirements can result in delays, refusals, or even deportation.
By seeking legal advice from JB Solicitors, you can ensure that you understand the process and requirements and that you are able to comply with them fully. Our immigration lawyers can also provide you with legal representation in court or tribunal hearings, which can be a critical factor in the success of your case.
Contact us today for more information about liability and recovery of amounts under the Migration Act.