LML6001 Migration Law: Analysis of ARJ17 v Minister Case

This paper analyzes the implications of the ARJ17 v Minister for Immigration and Border Protection case, focusing on the authority of the Secretary to approve blanket policies regarding search and seizure in immigration detention centers. The case, stemming from the detention of SZSZM and ARJ17, challenges the validity of a policy authorizing officers to confiscate mobile phones and SIM cards from detainees. The court invalidated the policy, emphasizing that the Migration Act empowers the Minister, not the Department, to develop regulations for detention centers. The analysis also discusses how the court interpreted legal rules and applied principles of statutory interpretation, including the literal and purpose rules, referencing the Interpretation Act 1901 (Cth) and the Migration Act 1958 (Cth). The decision highlights the limitations of the immigration department's power to regulate detainee conduct and the need for policies to be appropriate and not oppressive, while also considering potential risks associated with lifting restrictions on mobile phone usage in detention centers. Desklib provides a platform for students to access past papers and solved assignments to aid in their studies.

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

MIGRATION LAW
To
The Employer,
Subject: The Implications and Statutory Interpretation of the case of ARJ17 v Minister for
Immigration and Border Protection [2018] FCAFC 98.
There has been a considerable amount of development in the Australian Migration Law
that has been witnessed with the case of ARJ17 v Minister for Immigration and Border
Protection1. This present case was an appeal that has been preferred from SZSZM v Ministers
for Immigration & Ors2. This instant case mainly emphasizes upon the right of a person under
common law who is in possession of personal property. The question that has been raised in
this case was the issue that whether any authority was vested upon the Secretary to approve
the blanket policy empowering the officers to effect a search for sim cards and mobile phones
and the seizure of the same, which is in possession of the persons detained in the detention
centres established for the purpose of immigration under section 5(1), 196, 252, 189 and 252
provided in the Migration Act, 1958 (Cth)3. The central aim of this paper emphasizes on the
analysis and identification of the implications, which can be inferred in from this case in
relation to the authority that the secretary possesses for effecting the approval of the blanket
policy, which empowers the officers to initiate a search and to effect a seizure. In addition,
the officers emphasizes method, in which the legal system of Australia functions in relation
to the Migration Law.
The instant case has arisen in relation to the detention of SZSZM and ARJ17 in the
immigration centre in Villawood. It has been submitted in the court that afterwards SZSZM
has been sent to Pakistan owing to which he does not fall within the scope of immigration
detention. The respondents in relation to this instant case had not raised any objection in
1 [2018] FCAFC 98
2 [2017] FCCA 819
3 Migration Act, 1958 (Cth) ss. 5(1), 196, 252, 189 and 252

MIGRATION LAW
relation to the continuity of the present appeal initiated by the SZSZM. The case was
instituted by SZSZM by an application, in which the Federal Circuit Court has decided to
grant an interlocutory injunction in support of the SZSZM, which has the effect of prohibition
in relation to the confiscation and removal of mobile phones that has been found in the
possession of the detainees serving detention in relation to the immigration. Another
proceeding was instituted afterwards by ARJ17 and was dismissed by court for being in
excess of its jurisdiction relating to the same. Subsequently, the application, instituted by
SZSZM, has been dismissed by the court, which challenged the power conferred upon the
respondents in making seizure or confiscating the mobile phones belonging to detainees.
Afterwards the appeal preferred by ARJ17 has been admitted by the court.
The court has been trying two proceedings in this matter. The first matter was the SZSZM
v Minister for Immigration and Border Protection4 from which the second one, namely,
ARJ17 v Minister for Immigration and Border Protection5 has emerged as an appeal preferred
from the former. The first one is a proceeding decided by the Federal Circuit Court of
Australia from which the second one has been preferred. The validity of the of the policy
authorising the officers to confiscate the mobile and sim cards form the detainees, that has
been developed by the Secretary relating to the Immigration Department has been challenged
by these two proceedings.
The decision of the court has invalidated of the policy that prohibits the possession of sim
cards and mobile phones by the individuals, detained in the detention facilities relating to
immigration. The court has repealed the policy in its decision relating to this case. The policy
was inspired by the minute note formulated by the Australian Border Force. The same has
been formulated owing to the risk of the detainees to plan an escape or indulge into illicit
activities.
4 [2017] FCCA 819
5 [2018] FCAFC 98

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The first implication relating to the decision of this proceeding is that the power conferred
upon the immigration department to establish and maintain centres for the detention relating
to immigrants is limited to the acquisition or leasing of land in order to establish or effect the
construction of such centres and upkeep the same. Again, the Act does not confers the
department with the power to develop rules regulating the conduct of the detainees. The order
made by the court has rendered the policy formulated by the immigration department to be
inappropriate as the Act confers the department with the authority to implement the rules that
has been made by the ministers. However, it does not empowers the department to the make
policies.
The second implication that follows the decision delivered by the court is that the
Migration Act, 1958 empowers the Minister under section 273 with the authority to maintain
and establish detention centres in relation to the immigration and to develop regulations
regarding the case. Thus, the power vested needs to be enjoyed by the ministers, not the
Department in developing regulations. This Act do not vest the Department with a power
levy a ban relating to the possession of mobile phones and sim cards by individuals thus
detained.
Another implication inferred by virtue of the order delivered by this decision is that such
departments will abstain from developing inappropriate and oppressive policies. These
departments will consider all the possibilities before formulating such policies, exceeding
their authority.
Moreover, certain risks might follow owing to such an undoing of the policy. The
possibility of the individuals detained to elope from the detention centres by using mobile
phones. The usage of mobile phones in the detention centres would help the detainees to
involve in inappropriate and illegal endeavours.

MIGRATION LAW
In addition, the centres developed for detention requires to be separated from prison and
the imposition of strict policy of prohibition within detention centres is not ethical as
detention centres cannot be treated as a prison. Thus, the department does not possess the
authority to indulge in the creation of oppressive policies.
In this section of the paper advice would be provide in relation to how the legal rules had
been interpreted by the judges and what principles of statutory interpretation had been used.
When a court is giving meaning to provisions there are certain rules which need to be
followed. The judges use the provisions of the Interpretation Act 1901 (Cth)6 to give meaning
to the provisions of the legislation. The legislation which was at issue in this case is the
Migration Act 1958 (Cth). According to the rules of s 15AA of the IA 1901, the judges have
to give meaning to a section of a legislation by taking into consideration the purpose of for
which the legislation had been enacted. In doing so, the judges need to refer to the images,
notes, illustrations or surrounding sections of the text to find out the intension of the
parliament. The courts also used s 33 of the IA 1901. The section states that in situation
where legislation provides power or sets out of duty then powers can be performed when
required. The question before the court was that whether s.252(2) of the MA gives power to
carry our searches. Whether mobile can be used for the purpose of escape by the detainee was
also a question to be addressed. The court applied the literal rule of interpretation to come to
a conclusion that the phones are not hidden objects and cannot be used to escape the
detention centre. The court also had to interpret the provisions of s273 (i) it is provided that
the there is a blanket policy in place where the personal property of the detainees can be
taken in all circumstances. The question before the court in this case was to find out whether
authority to have in place detention centres in relation to s 273 is restricted by the particular
seizing and searching power under s 252-252C of the MA. The court held in favour of the
6 Interpretation Act 1901 (Cth)

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plaintiff through relying on the purpose rule which is provided via s 15AA of the IA. In this
case the court stated that purpose of the legislation is not to allow arbitrary use of authority.
The court also had the issue to find out the meaning of s 5(I), 189 and 196. The issue was to
analyze whether the confiscation of sim card and mobile phone of every detainee in the
centre through “taking such action and using such force” as “reasonably necessary” to detain
under s 5(1). The court came to a conclusion that as the respondents had already provided
adequate unmonitored landline and internet to all the detainee to would not be considered as
reasonably necessary to restrict detainee from using mobile phones when they had capacity of
effecting similar communication opportunities with persons outside the centres.

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