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

FEDERAL COURT OF AUSTRALIA

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 Appeal from: SZSZM v Minister for Immigration & Ors [2017] FCCA 819

File numbers: NSD 223 of 2017 NSD 725 of 2017

Judges: RARES, FLICK AND RANGIAH JJ

Date of judgment: 22 June 2018

Catchwords: ADMINISTRATIVE LAW – personal property – where possession of personal property important common law right – whether Secretary had power to approve "blanket policy" authorising officers to search for and seize mobile phones and sim cards of all persons held in immigration detention under Migration Act 1958 (Cth) ss 252, 273(1) or 5(1), 189 and 196 – whether blanket policy a valid direction to officers by the Secretary under Public Service Act 1999 (Cth) s 13(5) STATUTORY INTERPRETATION – Migration Act 1958 (Cth) s 252 – whether s 252(2) authorises search – whether "hidden" things includes objects in plain view or carried in clothing for ordinary use – whether mobile phone or sim card "other thing" "capable of" being used to help detainee escape from immigration detention under s 252(2)(a) – whether officer must give consideration to individual circumstances of detainees when considering whether to search under s 252 – whether blanket policy fetters officer's discretion to hold mobile phone or sim card for such time as officer "thinks necessary" under s 252(4) STATUTORY INTERPRETATION – Migration Act 1958 (Cth) s 273(1) – whether Minister's power to cause detention centres to be "established and maintained" under s 273(1) authorised blanket policy to take personal property of detainees in all circumstances – whether power to maintain detention centre under s 273 limited by specific powers to search and seize under ss 252-252C STATUTORY INTERPRETATION – Migration Act 1958 (Cth) ss 5(1), 189 and 196 – whether confiscation of mobile phones and sim cards of all detainees in immigration detention "taking such action and using such force" as "reasonably necessary" to detain under s 5(1)