Australian Immigration Daily News

When does an officer of the Australian Border Force have legal authority to search someone’s mobile phone in immigration clearance?

That question was presented in a case that was recently considered by Judge Dowdy of the Federal Circuit Court in a recent case, DOZ16 v Minister for Immigration (2017) FCCA 1157 (6 June 2017).

These were the circumstances of the case:

The visa holder was a citizen of Zimbabwe who had applied for a Visitor visa in March 2016 with the stated purpose of coming to Australia to attend her sister’s wedding.  She had said in her visa application that her proposed period of stay in Australia was up to 3 months, that she would not be undertaking a course of study in Australia, and that she had a male partner in Zimbabwe with whom she was in a de facto relationship.

The Visitor visa that was issued to her included “Condition 8101” which provided that: “The holder must not engage in work in Australia”.

The Visitor visa also allowed multiple entries into Australia, with a maximum stay period during each visit of 3 months following the date of arrival.

The visa holder originally arrived in Australia on 29 July 2016. Shortly before the expiration of the original 3-month stay period, on 27 October 2016, she departed Australia and flew to Malaysia. Then, on 30 October 2016, she flew back to Australia from Malaysia, arriving at Sydney Airport.

On her arrival at the airport, the visa holder’s (2) mobile phones were examined by an Australian Border Force officer.

One of the phones contained the following text messages between the applicant and a friend:

“r u working yet” (from the friend)

“not yet I just get part time job sometimes”.

After reviewing these text messages, the Border Force Officer “put” to the visa holder that these text messages and others confirmed that she had been taking cleaning jobs in Australia, and that she intended to take more.  The visa holder then told the Officer that she had indeed been working in Australia.

At that point, the Border Force Officer proceeded to issue a Notice of Intention to Consider Cancellation of the Visitor visa, under section 116(1)(b) of the Migration Act  (which permits cancellation if the visa holder has not complied with a condition of the visa). 

Then, after suspending the interview for a period of 10 minutes to give the visa holder an opportunity to consider and give reasons why the visa should not be cancelled, when the interview resumed the visa holder made frank admissions that she had breached the conditions of her visa, by saying, among other things “so I know I violated the law”  and “I shouldn’t have breached the condition of my visa”.

In the wake of these admissions, the delegate proceeded to cancel the visa.

The visa cancellation was then challenged directly in the Federal Circuit Court (there being no possibility for the visa holder to seek review in the AAT because under section 338(3)(b) of the Act the Tribunal does not have jurisdiction to review a visa cancellation made at a time when the non-citizen is in immigration clearance).

So, was the search of the visa holder’s mobile phones lawful?

The Court found that it was!

Section 252 of the Act authorizes searches of a person, the person’s clothing, and any property under the immediate control of the person, without warrant,  in circumstances where the person searched is a non-citizen who had not been immigration cleared and an authorized officer has reasonable grounds for suspecting there are grounds for cancelling the person’s visa.

So, when does an officer have reasonable grounds for suspecting that there are grounds for cancelling a visa, so that the officer may proceed to carry out a search under section 252?

First, according to Judge Dowdy’s decision, the officer must have an “actual subjective suspicion” for suspecting that there are reasonable grounds for cancelling the visa.

This is a “low threshold”: the officer must have a state of mind equating to “conjecture”, “surmise”, “actual apprehension” or the like, namely a state of mind that “I suspect but I cannot prove”.

Second, there must be objectively reasonable  grounds for the officer to form the subjective suspicion – in other words that the “circumstances provide a sufficient foundation for a reasonable person to form the suspicion”.

Were there objectively reasonable grounds for the officer’s suspicion in this case?

Judge Dowdy concluded that there were, and accordingly held that the search was lawful.

The Court found that these circumstances were sufficient to provide objectively reasonable grounds for the officer’s suspicion that there were grounds for cancelling the visa:

• The visa holder held a visa subject to Condition 8180 prohibiting her from working in Australia;
• The information on the visa holder’s “incoming passenger card” indicated that she was a student resident in Zimbabwe, which in the Court’s view suggested that she was usually resident in Zimbabwe as a student and would likely be without employment and was of limited means;
• The passenger card also indicated that her second entry to Australia was for the purpose of “visiting relatives” which would mean that she would be staying in Australia for a total period of 6 months, raising questions about how she would fund her expenses of living;
• Her trip to Malaysia from Australia was very short, only 3 days, which the Court considered insufficient to undertake tourist activities in Malaysia, indicating that she might have been working in Australia and that she had an incentive to keep her trip to Malaysia as short as possible so she could return to work.

So, here we have a case where the evidence on the visa holder’s own mobile phones, as well as her admissions when being interviewed in immigration clearance, spelled the doom of her visa!

So one of the morals of the case is that if you have been working unlawfully in Australia, don’t waltz through immigration clearance with the mistaken belief that your phone won’t be searched!

The joys of modern technology!