This article will discuss sections 222 to 224 of the Migration Act 1958 which tackles different aspects of managing the property and valuables of detained non-citizens, particularly in dealing with seized items from detained non-citizens.

Power to Restrain Non-Citizens to Dispose Their Property

Section 222 illustrates one way of dealing with seized items from detained non-citizens. Section 222 of the Migration Act deals with orders restraining certain non-citizens from disposing etc. of property.

In simpler terms, it allows the Australian government to prevent non-citizens from selling, transferring, or otherwise dealing with their assets under specific circumstances. Here's a breakdown of the key points:

  1. Who it applies to: This section applies only to non-citizens.
  2. Conditions for an order: A court can issue an order if:
    • The Secretary of the Department of Home Affairs or the Australian Border Force Commissioner applies for it.
    • The court believes that:
      • The non-citizen is liable to pay a debt to the Commonwealth (the Australian government) upon deportation or removal from Australia (e.g., costs associated with their detention or removal).
      • If the court does not make the order, the government might not be able to recover the full amount of the debt.
  3. What the order can do: The order can restrain the non-citizen from dealing with all or part of their property as specified in the order. This could include selling, transferring, gifting, or mortgaging assets.
  4. Purpose: The purpose of this section is to ensure that non-citizens who owe debts to the government don't dispose of their assets before they face deportation or removal, making it difficult for the government to recover the owed amount.

Dealing with Seized Items From Detained Non-Citizens: Other Important Points

This section also provides that the Secretary or Australian Border Force Commissioner may apply to a court for an order in respect of:

  1. any of a non-citizen's property that is in Australia; or
  2. specified property of a non-citizen that is in Australia.

The property that the law points out are those that are real or personal property of every description, whether tangible or intangible. These properties must be in Australia, and includes an interest in any such real or personal property.

Note also that a court has the power to rescind, vary or discharge an order made by it under this section. Moreover, it may suspend the operation of an order made by it under this section.

If a person contravenes the conditions under this section, he or she may be liable for an imprisonment for 2 years. However, this penalty is not application if the person has a reasonable excuse

Provision for Meeting Expenses

An order under this section may include a provision for meeting, out of the property or a specified part of the property to which the order relates, either or both of the following:

  1. the non-citizen's reasonable living expenses (including the reasonable living expenses of the non-citizen's dependants (if any));
  2. reasonable legal expenses incurred by the non-citizen in relation to a matter arising under this Act.

Dealing with Seized Items From Detained Non-Citizens: Managing Their Valuables

Section 223 of the Migration Act 1958 empowers the Secretary of the Department of Home Affairs or the Australian Border Force Commissioner to manage the valuables of detained non-citizens under specific circumstances.

Here's what you should know:

  1. Who it applies to: This section applies only to non-citizens who are facing detention under the Migration Act.
  2. Power of the Secretary or Commissioner:
    • Direct: Inform the detained non-citizen that authorities can take and manage their valuables
    • Take possession: They can seize the valuables for safekeeping and management under specific conditions:
      • The non-citizen does not have permission to have those valuables under the Act or regulations.
      • The valuables are in need as evidence in legal proceedings.
      • Taking possession is necessary to protect the valuables from loss or damage.
  3. Responsibilities of the authorities:
    • Safekeeping: They are responsible for keeping the valuables securely until they can deal with it according to the Act.
    • Preservation: They must take all reasonable steps to preserve the valuables while they are holding them.
    • Dealing with the valuables: After taking possession, the Secretary or Commissioner can:
      • Give the valuables back to the non-citizen when they no longer need to detain it
      • Sell the valuables and use the proceeds to pay debts owed by the non-citizen to the Commonwealth (e.g., detention costs).
      • Dispose of the valuables in another way authorized by the Act.

Power of the Secretary or Australian Border Force Commissioner

Basically, this section pertains to the power of the Secretary or Australian Border Force Commissioner to take the valuables of detained non-citizens if they think that:

  1. the detainee is an unlawful non-citizen or a deportee;
  2. the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 (costs of removal or deportation) or 212 (costs of removal or deportation of spouses, de facto partners and dependants); and
  3. if the Secretary or Australian Border Force Commissioner does not give a notice under this section there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section 210 or 212.

Note that the Secretary or Australian Border Force Commissioner must produce a notification in writing addressed to the detainee that his or her valuables are liable to be taken under this section.

Dealing With Seized Items From Detained Non-Citizens: Authorising Notice of Taking

Section 223 provides for the rules as to the authorising notice of taking the detainee's valuables as mentioned under this section:

  1. The Secretary or Australian Border Force Commissioner shall cause a copy of the notice to be served on the detainee as prescribed.
  2. At any time after a copy of the notice has been served on the detainee and while the notice remains in force, the Secretary or Australian Border Force Commissioner may take possession of any of the valuables.
  3. The Secretary or Australian Border Force Commissioner believes, on reasonable grounds, that these valuables to belong to the detainee.
  4. A copy of the notice may be served on:
    • any bank;
    • any other financial institution; or
    • any other person.

Upon receiving a copy of the notice, a bank or other financial institution cannot process any transaction pertaining to any of the detainee's account, either individually or in conjunction with another person.

Furthermore, this rule also applies regardless of whether it is for the detainee's own benefit or as a trustee. The only way to do so is to obtain the written consent of the Secretary or Australian Border Force Commissioner to permit such transaction.

If a person contravenes this section, he or she may be liable to pay 300 penalty units or AUD 33,000.

For more information about the rules on notice of taking the detainee's possession, you can check the full text of this law here or ask a legal professional to explain it to you.

Dealing with Seized Items From Detained Non-citizens

Section 224 of the Act deals with dealing with seized valuables. In simpler terms, it outlines the process for managing valuables taken from non-citizens who are detained under the Act.

The key points are below:

  1. Who it applies to: This section applies to valuables seized from detained non-citizens under the powers granted in section 223 of the Act.
  2. What the Secretary or Commissioner can do:
    • Arrange for safekeeping – They are responsible for ensuring the valuables are kept securely until they are dealt with according to the Act.
    • Take reasonable steps for preservation – They must take all necessary measures to maintain the condition of the valuables while they are in their possession.
  3. Dealing with the valuables:
    • Return – The valuables can be returned to the non-citizen if they are no longer detained or when their immigration status is resolved.
    • Sell – If the non-citizen owes a debt to the Commonwealth (e.g., detention costs), the valuables can be sold to recover the debt. Any remaining proceeds after debt recovery are returned to the non-citizen.
    • Dispose of – In specific circumstances, the valuables may be disposed of in other ways authorised by the Act (e.g., if they are perishable or have no value).

Returning and Dealing with Seized Items From Detained Non-citizens

Under this section, the Secretary or Australian Border Force Commissioner shall arrange the return of the valuables to the person from whom they were taken if:

  • the authorising notice stops being in force;
  • the notified detainee is granted a visa or stops being a deportee;
  • the notified detainee is not, when the authorising notice is given, liable to pay an amount to the Commonwealth under section 210 or 212;
  • the notified detainee does not, within 6 months after the giving of that notice, becomes so liable; and
  • all amounts that the notified detainee is or becomes liable to pay to the Commonwealth under section 210 or 212 are already paid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.