Implications and Statutory Interpretation of ARJ17 v Minister for Immigration and Border Protection

Running head: IMMIGRATION LAW
Immigration Law
Name of the Student
Name of the University
Author Note

1IMMIGRATION LAW
To
The Employer,
Subject: Implications and Statutory interpretation of the case of ARJ17 v Minister for
Immigration and Border Protection [2018] FCAFC 98.
1. Implications:
The case of ARJ17 v Minister for Immigration and Border Protection1 has a great deal of
significance relating to the Migration Law prevalent in Australia. The present case is an
appeal from the case of SZSZM v Ministers for Immigration & Ors2. The main focus of this
instant case is the common law right of an person relating to the possession with respect to
personal property. The question that crops up regarding this case is the fact that whether the
Secretary is empowered to make the approval with respect to the blanket policy that
authorises the officers to carry out a search relating to mobile phones and sim cards and seize
the same with respect to all persons who are held in detention relating to immigration under
section 252, 5(1), 196, 273(1) and 189 of the Migration Act 1958 (Cth)3. The main objective
of this assignment is to analyse and identify the implications relating to this case with respect
to the power of the secretary to approve the blanket policy authorising the officers to proceed
with a search and seizure. The assignment also focusses the manner in which Australian legal
system works with respect to Migration Law.
The present case has been initiated with the detention of ARJ17 and SZSZM at the
Villawood Immigration Centre. It has been brought to the notice of the court later on that
SZSZM has been returned to Pakistan and does not come under the purview of immigration
detention anymore. The respondents relating to this case did not pose any objection regarding
1 [2018] FCAFC 98
2 [2017] FCCA 819
3 The Migration Act 1958 (Cth) ss. 252, 5(1), 196, 273(1) and 189

2IMMIGRATION LAW
the continuation of the appeal by the SZSZM. The case has been initiated by SZSZM with his
application preferred to the Federal Circuit Court in which the court has delivered an
interlocutory injunction in the favour of SZSZM prohibiting the confiscation or seizure of
mobile phones from the person detained under the immigration detention. Later on another
proceeding has been preferred by ARJ17, which has been dismissed by the court owing to
their inadequate jurisdiction regarding the same. Subsequent to this, the court has dismissed
the application made by SZSZM questioning the authority of the respondents to confiscate or
seize their mobile phones in the detention centres. However, the appeal that had been
preferred by the ARJ17 has been allowed by the court.
In this matter, the court has been faced with two proceedings the one being the SZSZM v
Minister for Immigration and Border Protection4 and the other being the ARJ17 v Minister
for Immigration and Border Protection5. The former one implies an appeal, which has been
preferred from a decision delivered by the Australian Federal Circuit Court. The later one is
an application filed in the original jurisdiction connected to this court. These proceedings
have been instituted in order to challenge the validity of the change that has been effected by
the Secretary of the Department of Immigration and Border Protection in relation to the
policy that mandates the removal of sim cards and mobile phones that are found to be
possessed by the detainees of the detention facilities relating to immigration.
The first implication that has been arrived at by the decision of the court is the fact that
the Migration Act, 1958 under section 273 confers the Minister with the power to effect the
maintenance and establishment of detention centres relating to the immigration and to
formulate regulations relating to the case. However, the power so conferred is to be exercised
by the ministers and does not empower the Department to develop regulations. The Act does
4 [2017] FCCA 819
5 [2018] FCAFC 98