Please note that the information we provide about forfeiture of seized things is current as of the date of publication. Moreover, the DHA regularly updates rules and regulations. Kindly check the official updates before making any decisions. Speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
Forfeiture of seized things under the Migration Act 1958 relate to the things that may be forfeited that were used in certain offences under section 261A. To know more about this topic, you may read our article on ‘Dealing With Things Seized as Automatically Forfeited’. This article will take up Sections 261A to 261E of the Act.
This article will discuss other provisions (section 261I to 261F) about the forfeiture of seized things under the Act.
Forfeiture of Seized Things: What Happens If Not Claimed On Time?
Section 261F states that if the forfeited thing has not been claimed, the law will condemn the thing. The period of condemnation is 21 days after notice of seizure of the thing. To claim the forfeited thing, the person claiming such must comply with the following conditions:
- within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary or Australian Border Force Commissioner a written claim for the thing;
- the claim is in English;
- the claim sets out an address for service on the person making the claim; or
Moreover, within the period set under this provision, the Minister shall give a a written order. The order will state that the thing is not to be condemned as forfeited. Note that, a person may claim the thing. This is regardless if it is disposed of or destroyed before or after the claim.
Forfeiture of Seized Things: How To Deal With It?
This section is an important topic related to the forfeiture of seized things. Section 261G of the Act lays out the process of dealing the the seized thing when it is claimed under section 261F. This provision illustrates the process after a person claims the seized things:
- An officer may retain possession of the thing. This is so whether or not there has been an institution of any proceedings for the condemnation of the thing; and
- The Minister may give a written order that the thing is not condemned as forfeited; and
- Unless the Minister makes an order, the Border Force Commissioner may give the claimant a written notice. The notice must state that the thing will be condemned as forfeited unless:
- the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or
- within one month, the Minister gives a written order that the thing is not condemned as forfeited.
Remember: If notification is not given by the Australian Border Force Commissioner or the Secretary, an officer may still be in possession. If so, the only way the claimant can get the item back is if the court directs that it be released to them.
Furthermore, the claimant may initiate legal procedures after receiving notice from the Secretary or Australian Border Force Commissioner. With this, the outcome of the proceedings will determine whether the claimant is successful in recovering the item.
Forfeiture of Seized Things: What Happens If Thing Is Claimed?
Section 261H applies if the Secretary or Border Force Commissioner gives the claimant a notice (section 261G). about instituting proceedings:
- to recover the thing; or
- for a declaration that the thing is not forfeited.
If, within the period of one month after the notice is given the claimant does not institute such proceedings; and the Minister does not give a written order that the thing is not to be condemned as forfeited; the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.
Furthermore, if the claimant chooses to institute such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:
- before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or
- at the end of the proceedings, there is:
- an order for the claimant to recover the thing; or
- if the thing has been sold or disposed of, an order for the Commonwealth to pay the claimant an amount in respect of the thing; or
- a declaration that the thing is not forfeited.
However, if the proceedings go to judgment, they will end:
- if no appeal against the judgment is lodged within the period for lodging such an appeal – at the end of that period; or
- if an appeal against the judgment is lodged within that period – when the appeal lapses or is finally determined.
Note that proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.
Court Can Order Delivery of the Thing
If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person even if the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate.
This includes an order that the Commonwealth shall pay the person an amount equal to:
- If the thing has been sold before the end of the proceedings. The proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or
- If the thing has been disposed of (except by sale) or destroyed before the end of the proceedings. The market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate.
In the event that the thing is condemned – Section 261I of the Act states that if the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Secretary.
Seek the Expertise of Migration Lawyers
Our migration lawyers at JB Solicitors can explain about the forfeiture of seized things under the Migration Act 1958. Australian migration law can be difficult to understand as it contains technical terminologies that only experts can understand.
Thus, if you need help with understanding how the Australian migration law works, schedule a consultation with us today.
