One of the significant cases in relation to the migration law prevailing in Australia is ARJ17 v Minister for Immigration and Border Protection. This case has been initiated in the form of an appeal from a case involving similar issue namely, SZSZM v Ministers for Immigration & Ors. 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). 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 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 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 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 1901.

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 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.

References

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