This article will discuss recovery of costs from certain persons under the Migration Act 1958. What is immigration detention? In Australia, it is the practice of holding people in custody while they are awaiting a decision on their immigration status. There are a number of different types of immigration detainees in Australia, including:
- Unauthorised maritime arrivals: People who arrive in Australia by boat without a valid visa.
- Persons who have overstayed their visa: People who have remained in Australia beyond the expiry date of their visa.
- Persons who have faced cancellation of visa: If government cancels visas of people. For example, because they have committed a crime or have breached their visa conditions.
- Persons who are subject to deportation: If the government has ordered some people to leave Australia.
Read on to learn more about provisions for recovery of costs from certain persons
Section 262: Liability to the Commonwealth for the Cost of Keeping, Maintaining and Removing Certain Persons
Section 262 outlines the responsibility of certain individuals and entities for covering the expenses related to the:
- detention,
- maintenance, and
- transportation
of specific persons.
According to provisions for recovery of costs from certain persons, this liability applies to individuals who meet the following criteria:
- Authorities have detained them under Section 189 of the Act.
- They were aboard a non-aircraft vessel that was in use for the commission of an offence under this Act. Or a prescribed law within the Commonwealth, a State, or a Territory related to fishing control.
- Authorities have convicted them for the mentioned offence.
Under these circumstances, the parties are jointly and severally responsible for compensating the Commonwealth for (the parties include the master, owner, agent, and charterer of the vessel on which the person travelled to Australia):
- a. The expenses associated with keeping and maintaining the detained person while they are in immigration detention.
- b. The costs of transporting the person and anyone accompanying them from the vessel to the immigration detention facility.
- c. The costs of transporting the person and their accompanying individuals between different immigration detention locations.
- d. If authorities return the person to the same vessel or another vessel, the expenses of transporting the person and their accompanying individuals from the immigration detention facility to the vessel.
- e. If the person is, or is going to be, removed from Australia at the expense of the Commonwealth, the costs associated with the removal, including the transportation costs of those escorting the person.
Additional Provisions of Section 262
The Minister has the authority to specify a daily amount for the maintenance of a person in immigration detention at a particular place during a specified period. This amount should not exceed the actual cost that the Commonwealth incurs for detaining the person.
Importantly, the obligation to make these payments to the Commonwealth can be enforceable either at the time:
- When authorities convict the person of the offence under Section 262 (1)(b) of recovery of costs from certain persons provisions; or
- Following the completion of the person’s entire sentence resulting from their conviction of the aforementioned offence.
Section 263: Secretary or Australian Border Force Commissioner Able to Issue Notice of Debt
Section 263 of recovery of costs from certain persons outline the certain people who can issue a notice of debt. If:
- A person must pay the Commonwealth an amount under section 262 (which deals with the cost of detention and removal of certain people), and
- The Secretary or Australian Border Force Commissioner gives written notice to the person giving particulars of the liability and stating that they require payment of a specified amount not exceeding that amount;
then the specified amount is a debt recoverable by the Commonwealth from the person:
- In a court of competent jurisdiction, or
- By garnishee notice under section 264. We explain Section 264 below.
Section 264: Garnishee Notice
Section 264 of recovery of costs from certain persons pertains to garnishee notices, and it outlines the following provisions:
- When someone owes a debt to the Commonwealth by a debtor under sections 263 or 265, the Secretary or Australian Border Force Commissioner may issue a written notice to another individual or entity, requiring them to:
- Pay to the Commonwealth an amount that they specify in the notice, not exceeding the debt or the relevant money, and such an amount can be drawn from any money due or accruing to the debtor, held for the debtor, held for another person for payment to the debtor, or authorised to be paid to the debtor by another person.
- Make periodic payments to the Commonwealth from funds they are liable to pay to the debtor until the debt is settled.
- The deadline for compliance with the notice issued under Section 264 (1) should be as indicated in the notice, provided that it is not before:
- The relevant money becomes due.
- The end of a 14-day period after the deliverance of notice.
Additional Points
- If the debtor is within Australia when the Secretary or Australian Border Force Commissioner issues the notice, they must also provide a copy of the notice to the debtor.
- Any individual or entity who complies with the notice by making a payment to the Commonwealth is regarded as having acted with the authority of the person who owes the debt to the Commonwealth, as well as any other relevant parties.
- If, subsequent to the issuance of notice, another person makes a payment to reduce or satisfy the debt, the Secretary or Australian Border Force Commissioner must inform the recipient of:
- The initial notice; and
- The specified amount in the notice is considered reduced by the amount paid.
- If a sum of money is not immediately due or repayable to a person, but rather is subject to certain conditions that must be fulfilled, it is treated as due or repayable on demand for the purposes of this section. This is the case even if they have not yet met the condition.
Section 265: Debt From Failure to Comply With Garnishee Notice
Section 265 of recovery of costs from certain persons outlines failure to comply with a garnishee notice.
What if a person (the garnishee debtor) gets a garnishee notice under section 264 and fails to comply with it? Then the Australian government can recover the outstanding amount of the debt from the garnishee debtor by:
- Legal proceedings in a court of competent jurisdiction; or
- Another garnishee notice under section 264.
The outstanding amount of the debt is the lesser of:
- The amount that the garnishee debtor was able to pay under the original garnishee notice; or
- The amount of the debt that was due at the time they received the original garnishee notice and that remains due.
What if the Australian government recovers any or all of the debt from the garnishee debtor or from the original debtor? If this is the case, there is reduction in both debts by:
- The amount that the government has recovered; and
- The amount in the original garnishee notice is also taken to be reduced by the amount recovered.
Section 266: Future Debts
Section 266 of recovery of costs from certain persons discusses future debts. Under this section, authorities consider a future debt concerning an individual if the Secretary or Australian Border Force Commissioner reasonably believes that, in accordance with section 262, the individual will have an obligation to pay this amount to the Commonwealth.
Section 267: Secretary or Australian Border Force Commissioner May Freeze Amounts to Secure Future Debts
Section 267 of recovery of costs from certain persons state the following:
If someone (the future debtor) is likely to become liable to pay the Australian government money (the future debt), the Secretary or Australian Border Force Commissioner can give written notice to another person (the third party):
- Who owes or may owe money to the future debtor; or
- Who holds or may hold money for or on behalf of the future debtor; or
- Who holds or may hold money on behalf of someone else for payment to the future debtor; or
- Who has authority from someone else to pay money to the future debtor;
requiring the third party to hold onto a certain amount of money for a period of up to 28 days. The amount of money is either the amount of:
- The future debt
- Money that the third party owes to the future debtor; or
- A specific amount out of each payment that the third party is liable to make to the future debtor.
If the future debtor is in Australia, the Secretary or Australian Border Force Commissioner must give a copy of the notice to the future debtor.
If, after receiving the notice, someone else pays part or all of the future debt, the Secretary or Australian Border Force Commissioner must notify the third party. The amount of money that the third party must hold onto is then reduced by the amount that has been paid.
If the third party does not owe the future debtor any money immediately, but will owe them money in the future, the third party is still required to hold onto the specified amount of money.
Section 268: Application of Division to the Crown
Section 268 of recovery of costs from certain persons outlines the application of this Division to the Crown.
- This Division applies to the various governmental entities, including the Commonwealth, each State, the Australian Capital Territory, and the Northern Territory.
- In the context of this Division, a notice can be delivered to the Commonwealth, a State, or a Territory by providing it to an individual employed by the respective government entity. This individual should have a responsibility, as mandated by the relevant laws of the Commonwealth, State, or Territory, for disbursing public funds.
Seeking Legal Advice Recovery of Costs From Certain Persons
It’s difficult to be in debt especially if you owe money to government agencies. At JB Solicitors, we can help with legal representation and help you arrange payments or challenge legal decisions.
Our lawyers can also help with other migration matters such as visa applications, deportation, citizenship registration, and immigration appeals.
Contact us today if you need more help with recovery of costs from certain persons.
