LML6001 - Case Analysis: ARJ17 v Minister & Migration Act 1958

This case study provides an in-depth analysis of the ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 case, focusing on its implications for Australian migration law and statutory interpretation. The case revolves around the Secretary's authority to implement a blanket policy allowing officers to search and seize mobile phones in immigration detention centers. The paper discusses the court's decision, which invalidated the policy, and its impact on the powers of the Department of Immigration. It also examines the application of statutory interpretation rules, particularly the literal rule and section 15AA of the Acts Interpretation Act 1901, in arriving at the court's decision. The analysis further explores the potential consequences of the decision, including concerns about detainees' ability to engage in illicit activities and escape detention, while also emphasizing the ethical considerations of imposing stringent policies in detention centers versus prisons. The assignment uses relevant legislations such as Migration Act 1958 and Acts Interpretation Act 1901 to make a sound argument.

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

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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

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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

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possession of the detainees of the immigration detention centres. The decision of the court in
this case has overturned the policy that has been implemented by the immigration centres.
This policy was initially influenced by a minute note prepared by the Australian Border
Force.
It can be implied by the decision of the court in this proceeding that by virtue of the
provisions contained in section 273 of the Migration Act, 1958, the Ministers are empowered
to maintain and establish the detention centres in relation to immigration. It also entrusts
them with the power to develop regulations relating to such matters. However, the power of
developing regulations has been conferred upon the ministers and not the Department and the
same needs to be exercised by the ministers only. Consequently, the department is not
conferred power to develop regulations that will have the effect of putting a ban on the
possession by the individuals of mobile phones and sim cards who has been in detention.
The decision also implies that the department has been empowered with the establishment
and maintenance of the immigration detention centres to the extent of the acquisition and
leasing of land to effect such establishment and also to carry out the construction of such
detention centres and the regular maintenance of such centres. However, this does not
empower the department to formulate regulations controlling the conduct of the detainees.
The policy developed by the department has been invalidated by the decision of the court in
this proceeding owing to the reason that the power that has been assigned to the department
by virtue of the Act is to implement the regulations that has been formulated by the ministers
but not to create regulations on their own.
In addition, it has also been implied from the instant decision that as a result of this
decision, the departments of this kind will abstain from developing such unreasonable and

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oppressive policies in excess of their powers that has been assigned to them and will consider
the effects in case they fail to obey the same.
However, it can also be implied that the implementation of this decision would increase
the chances of the detainees of such to escape the detention with the aid of the use of mobile
phones during their time in the detention centres. It will also help the detainees to indulge
into illicit and illegal activities, while serving their detention period.
However, it can be contended that detention centre are different from prison and
imposition of such stringent policies will not be justified in a detention centres. Such a
prohibition will not be ethical as detention centres should not be confused with prison.
A court needs to interpret a statute while deciding on a case and in effecting the same the
court has to implement certain rules relating to the interpretation of statutes. The
interpretation of statutes in Australia is effected in conformity with the Acts Interpretation
Act 19014.
In the present case the court has arrived at the decision applying the rules of interpretation
that has been contained in section 33 and section 15AA of the Act. The present case has been
interpreted in line with the literal rule of interpretation and the rule of interpretation that is
contained in the section 15AA which points to an interpretation giving effect to the purpose
of the Act whose provision is under question. The rule of interpretation that is contained in
section 33 of the Act assigns a method of interpretation that needs to be assigned to the
expression may contained in a statute.
The statute in question in the present case is the Migration Act 1958, which needs to be
subjected to interpretation. In interpreting the same, the court has implemented the literal rule
of interpretation and has also adhered to the rule of interpretation that has been provided in
4 The Acts Interpretation Act 1901 ss. 15AA and 33

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section 15AA of the Act. In case of literal rule of interpretation, the court needs to assign the
literal or the grammatical denotation to the provision of a statute that is under consideration.
Under this rule the court is not justified in deviating from the express language that has been
provided in the statute. The literal meaning of the provision needs to be adhered to by the
court while interpreting a statute. In the present proceeding, the court has interpreted the
provision contained in section 273 of the Act following the literal rule of interpretation. It
contended that the provision contained in this section expressly empowers the Ministers to
formulate regulations in relation to the conduct of the detainees in the immigration detention
centres and it does not extend that power to the department.
While interpreting section 5, 273, 189 and 196 of the Migration Act, the court has applied
the rule provided in section 15AA of the Act. The court has referred to the purpose for which
the statute has been enacted for in case the language of the provision in question leads to
anomaly or injustice.
The court has the option of resorting to the golden rule or the mischief rule while
interpreting the provisions but the same would have resulted in ambiguity. Hence, the court
effected the interpretation applying the literal rule and section 15AA of the 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