Analysis: ARJ17 v Minister - Statutory Interpretation & Impact

This case study delves into the ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 case, examining its implications on Australian Migration Law and statutory interpretation. The core issue revolves around the Secretary's authority to approve a blanket policy for searching and seizing mobile phones and SIM cards from immigration detainees. The analysis identifies key implications, including the delineation of power between the Minister and the Department in creating immigration regulations, the limitations on departmental authority regarding detainee conduct, and the potential risks associated with invalidating the policy. The study further explores the court's application of statutory interpretation principles, particularly the literal rule and section 15AA of the Acts Interpretation Act 1901, in interpreting the Migration Act 1958. The conclusion emphasizes the importance of adhering to proper statutory interpretation to ensure lawful and ethical immigration policies.

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

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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

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not empower the Department to impose a ban on the possession of sim cards and mobile
phones by the individuals who have been detained.
The second implication that follows the decision is the fact that the power that has been
conferred upon the department to maintain and establish centres concerned with the detention
of the immigrants is concerned with the leasing and acquiring of land to effect the
establishment or to undertake the construction of the same and maintenance of the same.
However, it does not empower the department to develop regulations to regulate the conduct
relating to the detainees. The decision has made the policy created by the department to be
invalid as the Act empowers the department to implement the regulations that has been
already made by the ministers but does not extend to the making of policies by the
department.
The third implication that has followed from the decision was that after this decision
these departments will refrain from creating oppressive and inappropriate policies. The
departments will think twice before developing such policies, which are in excess of their
authority.
The fourth implication is the risks that might follow from such an invalidation of the
policy. There is a chance of the detainees to escape from detention centres effected with the
help of the mobile phones. The use of mobile phones while staying in the detention centres
would aid the detainees to indulge in illicit and illegal activities.
The fifth implication is that the detention centres needs to be differentiated from prison.
The imposition of stringent prohibition in detention centres is unethical as the same cannot be
treated to be a prison. Therefore, the department is not authorised to make such oppressive
policies.

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2. Statutory Interpretation:
The court while deciding on a case requires to interpret the statutes and its sections in
order to arrive at a justified decision. There are certain rules that needs to be followed by the
court while interpreting a statute. In Australia, the rules relating to the interpretation of
statutes has been provided in the Acts Interpretation Act 19016. This Act contains the rules
that the courts must apply while interpreting a statute in order to arrive at a decision.
In this case, the court has applied the rule of interpretation that has been provided in
section 15AA and section 33 of the Acts Interpretation Act 1901. The other rules relating to
the interpretation of the statues are the literal rule, golden rule and mischief rule. In this
present case, the court has followed the literal rule and the rule provided in section 15AA,
which focusses on the purpose of the Act that is under the process of interpretation. The rule
of interpretation contained in section 33 of the Act strives to explain the interpretation that
must be assigned to the term may in a statute.
In this case, the statute that has been subjected to interpretation is the Migration Act 1958.
In this case, the court had applied the literal rule of interpretation and had applied the rule
contained in section 15AA of the Acts interpretation Act. The literal rule of interpretation
mandates the court to apply the literal and grammatical meaning in interpreting a provision of
a statute. It needs to assign the meaning that can be inferred from the plain and literal
language of the provision. In this proceeding, while interpreting section 273 of the Act the
court has inclined towards the literal meaning of the provision, which authorises the ministers
to make regulations to regulate the conduct of the individuals detained in the detention
centres relating to immigrations. The court while interpreting the same has applied the literal
meaning of interpretation and contented that the term ministers does not include officers.
6 The Acts Interpretation Act 1901 ss. 15AA and 33

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The term will be interpreted in pursuance of its plain grammatical meaning of the same. In
pursuance to this, the court has invalidated the policy made by the department.
The court in interpreting section 273, section 5, section 189 and section 196, the court has
applied the rule of interpretation that has been provided in section 15AA of the Acts
Interpretation Act. Under this Act when the literal meaning of a provision leads to anomaly
and ambiguity, the court may refer to the purpose for which the statute has been enacted and
will strive to effect the interpretation of such a provision in conformity with the purpose,
which the Statute has been enacted to serve.
The court might also interpret a section using the golden rule or the mischief rule. In case
of the golden rule, the court has the power to exceed from the literal meaning if the same has
been leading to ambiguity. But in this case, the provision was appropriately codified and the
language that has been provided in the provisions does not lead to ambiguity when subjected
to literal interpretation. In this case, the mischief rule is also not applicable. Thus the court
has interpreted the provisions involved in this case applying the literal meaning of the
provisions relating to this Act and in certain cases has adhered to the rule of interpretation
provided in section 15AA of the Acts Interpretation Act.

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Bibliography
ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98
SZSZM v Ministers for Immigration & Ors [2017] FCCA 819
The Migration Act 1958 (Cth)
The Acts Interpretation Act 1901