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

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

1MIGRATION LAW
To
The Employer,
Sub: Implications and Statutory interpretation of the case of ARJ17 v Minister for
Immigration and Border Protection [2018] FCAFC 98.
One of the significant cases in relation to the migration law prevailing in Australia is
ARJ17 v Minister for Immigration and Border Protection1. This case has been initiated in the
form of an appeal from a case involving similar issue namely, SZSZM v Ministers for
Immigration & Ors2. This instant case has been focussed in the right incurred by a person in
relation to the possession of personal property under the common law. The concern that rises
with this case is whether any authority lies with the Secretary to effect an approval in relation
to the implementation of blanket policy that empowers the officers to effect a search of
mobile phone and seize such mobile phones that are found in the possession of the persons
held in the centres for detention. The policy also empowered the officers to carry out such
search and seizure for sim cards. This approval has been effected in such immigration centres
under the provisions contained in section 5(1), 196, 252, 189 and 273(1) of the Migration Act
1958 (Cth)3. The main aim of this paper is to discuss and point out the implications in relation
to this case, which deals with the power vested upon the secretary in approving the blanket
policy empowering the officers to carry out a search relating to personal property and effect a
seizure of the same. The paper also emphasizes the method following which the legal system
prevailing in Australia functions in relation to Migration Law.
The initiation of the instant proceeding has been effected with the detaining of ARJ17 and
later on with the detention of SZSZM at an immigration detention centre namely, Villawood
Immigration Centre. Later on it was contended in the court that one detainee namely SZSZM
1 [2018] FCAFC 98
2 [2017] FCCA 819
3 The Migration Act 1958 (Cth) ss. 252, 5(1), 196, 273(1) and 189

2MIGRATION LAW
has been reverted to Pakistan. This excludes him from the purview of being detained in a
detention centre in relation to immigration. The respondent did not objected against the
continuity of this appeal that has been preferred by SZSZM. The proceeding has begun with
the application instituted by SZSZM in the Federal Circuit Court and has led to the
interlocutory injunction that has been ordered by the court in favour of applicant which has
the effect of restricting the confiscation of mobile phones found the possession of the persons
detained in the immigration detention centres by the officers. Subsequent to that, ARJ17 has
came up with a proceeding, which was subjected to dismissal by the court on the ground of
jurisdiction of the court not being adequate. The court has also effected the dismissal of the
application that has been made by SZSZM challenging the power vested upon the
respondents in confiscating the mobile phones found in the possession of the detainees of the
detention centres. However, the court has allowed the appeal that has been instituted by
ARJ17.
This instant matter has brought before the court two proceedings namely, SZSZM v
Minister for Immigration and Border Protection and ARJ17 v Minister for Immigration and
Border Protection. The case of ARJ17 v Minister for Immigration and Border Protection is an
appeal form the decision of the Australian Federal Circuit Court. The other proceeding
implies an application that has been instituted in the original jurisdiction of the court. The
institution of both the proceedings has the effect of posing a challenge towards the validity
relating to the change the secretary of the Department of Immigration and Border Protection
has made implementing the policy that has mandated the confiscation of mobile phones and
sim cards found in the possession of the individuals detained in the immigration detention
centres.
The court has declared a decision that has rendered the policy to be invalid and effected a
prohibition upon the officers from confiscating the mobile phones that has been found in the