ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98

The blanket policy was invalid because it was not authorised by any provision of the Migration Act 1958 (Cth). Section 252 did not authorise searches or seizure merely to remove all detainees' mobile phones and SIM cards, particularly where the statutory purpose is to find out whether relevant things are hidden and where retention requires an authorised officer's discretionary judgment. Section 273(1) concerned establishing and maintaining detention-centre premises and did not authorise a policy confiscating detainees' property. The definition of "detain" in s 5(1), with ss 189 and 196, did not make confiscation of every detainee's mobile phone or SIM card objectively reasonably necessary...

Jurisdiction
Australia
Judgment Date
22 June 2018
Procedural Posture
Representative Proceeding in the Original Jurisdiction and Appeal From the Federal Circuit Court of Australia, Heard Together / Full Court Determination of Reserved Question and Appeal
Outcome
The reserved question was answered that the blanket policy is invalid on the ground that it is not authorised by any provision of the Migration Act 1958 (Cth); the application succeeded and the appeal was allowed.
Legal Topics
['immigration Detention' 'search and Seizure' 'mobile Phones and SIM Cards' 'personal Property' 'blanket Policy' 'secretary Directions' 'detention Centres' 'principle of Legality']
['administrative Law' 'statutory Interpretation' 'migration Law' 'public Law'] ['immigration Detention' 'search and Seizure' 'mobile Phones and SIM Cards' 'personal Property' 'blanket Policy' 'secretary Directions' 'detention Centres' 'principle of Legality']

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Procedural Posture

Representative Proceeding in the Original Jurisdiction and Appeal From the Federal Circuit Court of Australia, Heard Together / Full Court Determination of Reserved Question and Appeal

Legal Issues

  1. 1 ['Whether the Secretary had power to adopt a blanket policy prohibiting detainees from possessing mobile phones and SIM cards in immigration detention facilities and requiring confiscation until departure from detention' 'Whether s 252 of the Migration Act 1958 (Cth) authorised searches for and seizure of mobile phones and SIM cards under the blanket policy' 'Whether mobile phones and SIM cards were things capable of being used to inflict bodily injury or help a detainee escape from immigration detention within s 252(2)(a)' 'Whether s 273(1) of the Migration Act 1958 (Cth) authorised the blanket policy as part of causing detention centres to be established and maintained' 'Whether ss 5(1), 189 and 196 of the Migration Act 1958 (Cth) authorised confiscation as reasonably necessary to detain unlawful non-citizens' 'Whether the blanket policy impermissibly dictated or fettered discretionary powers conferred on authorised officers under s 252' 'Whether the blanket policy could operate as a direction under the Public Service Act 1999 (Cth) consistently with the Migration Act 1958 (Cth)']

Ratio Decidendi

The blanket policy was invalid because it was not authorised by any provision of the Migration Act 1958 (Cth). Section 252 did not authorise searches or seizure merely to remove all detainees' mobile phones and SIM cards, particularly where the statutory purpose is to find out whether relevant things are hidden and where retention requires an authorised officer's discretionary judgment. Section 273(1) concerned establishing and maintaining detention-centre premises and did not authorise a policy confiscating detainees' property. The definition of "detain" in s 5(1), with ss 189 and 196, did not make confiscation of every detainee's mobile phone or SIM card objectively reasonably necessary...

Court Disposition

The reserved question was answered that the blanket policy is invalid on the ground that it is not authorised by any provision of the Migration Act 1958 (Cth); the application succeeded and the appeal was allowed.

Orders

  • ['In NSD 223 of 2017, the name of the third respondent be amended to the Secretary of the Department of Home Affairs.' "In NSD 223 of 2017, on or before 29 June 2018 the parties file agreed orders to give effect the Court's reasons for judgment." 'In NSD 725 of 2017, the name of the third respondent be amended to...