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Immigration Daily News Full Court Rules Department Cannot Confiscate Mobile Phones from DetaineesAustralian Immigration Daily News
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Full Court Rules Department Cannot Confiscate Mobile Phones from Detainees
The Full Court of the Federal Court has invalidated a policy that prohibited all persons who are being held in immigration detention from having mobile phones or SIM cards.
The Court’s decision to overturn the policy was made in a ruling that was handed down on 22 June 2018 in the case of ARJ17 v Minister for Immigration and Border Protection (2018) FCAFC 98.
The policy had its origins in a note that was prepared by the Australian Border Force in early 2016. This minute noted that while a policy was then in force prohibiting all “illegal maritime arrivals” from having and using mobile phones, that policy did not extend to other persons in detention.
The minute asserted that the possession of mobile phones by detainees posed certain “risks” including the risk of escape, use of force incidents, importation of illegal substances into detention facilities; abusive/aggressive behavior threats, contraband, mobile phones being used as currency, protest coordination and access to “inappropriate/abhorrent/radical” material.
On 27 May 2016, the Secretary of the Department decided ot adopt a policy to “reflect” the minute, and on 1 July 2017, the Department’s “Detention Services Manual” was amended to introduce a “blanket policy” to prohibit detainees from having mobile phones of SIM cards.
Subsequently, on 15 November 2016, the acting Commissioner of the Australian Border Force approved a plan to implement the mobile phone ban policy, which was called “Operation Ramentum”.
It is anyone’s guess why the implementation plan was given this name – the dictionary meaning of “ramentum” is “a particle, scraping or shaving” and it also is a botanical term meaning the scales on the shoots or leaves of certain ferns.
Which all goes to show that bureaucracies are capable of infinite creativity in thinking up stupid, ridiculous names for oppressive, mean-spirited policies (George Orwell would be proud).
The implementation plan was meant to come into effect in February 2017.
However, in December 2017, Judge Smith granted an interlocutory injunction restraining the confiscation of mobile phones under the policy, and the Full Court issued a similar injunction in February 2017.
The Department’s “legal justification” for the policy was two-fold:
1. That section 252 of the Migration Act authorises the Department to search a person’s clothing and any property under the person’s immediate control to find out whether there is hidden on the person or in the person’s clothing or property a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention.
2. That section 273 of the Act empowers the Minister to cause immigration detention centres to be “established and maintained” and that allows regulations to be made concerning the “conduct and supervision of detainees”.
The Full Court concluded that these sections of the Act do not give the Department legal authority to prevent detainees from having mobile phones of SIM cards.
The Court held that the power to conduct searches under section 252 is limited to “finding out” whether something is hidden, and cannot be applied in an indiscriminate way to search detainees for the purpose of confiscating their mobile phones.
Likewise, the Court found that the power of the Department to “establish and maintain” detention centres under section 252 was confined in its meaning to actions such as acquiring, leasing land for or occupying land to be used for detention centres, undertaking building work on the land, and carrying out upkeep or maintenance of the physical detention centres; in other words, the language of section 273 is not, in the Full Court’s view, properly interpreted as extending to the regulation of the conduct of persons being held in detention.
So, finding that there was no support in the law for the policy, the Full Court held that it was invalid.
So, what do you think? Was the Department’s policy overly harsh in the first place, especially in view of the fact that persons in detention are allowed to have access to the Internet and to land line telephones anyways?
Is there any justifiable reason for increasing the isolation of detainees, and making it more difficult for them to communicate with their family, friends, migration agents and lawyers? For holding them "incommunicado".
I don't think so. Do you?
Comments
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Wednesday, 27 June 2018If you arrive on a Tourist Visa intending to work, you are in breach of the conditions of your Tourist Visa.
When you are detained by Immigration authorities at the airport, it is not taken lightly, they do not detain people without sufficient cause to do so.
Whether Border Force was in receipt of information or "dob in" may have been a cause to detain and question further.
Further, if this "client" had been to Australia and worked before, then that would also be a reason to detain someone.
The fact that Border Force went through her phone looking for correspondence to prove that she was going to enter into work proves that the cancellation was based on evidence this individual was going to work in contravention of their visitor visa requirements.
If adverse information is found, they are provided with an opportunity to comment on that information before a cancellation is taken place.
Your best bet is to do an FOI on all of the documents, which will presumably show the evidence used to cancel the visa.
It does not matter if someone has no convictions etc, I would be very careful blowing the horn on something without looking at the facts, it looks unprofessional.
Kind regards,
Tim -
Wednesday, 27 June 2018
Some faith is restored
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Saturday, 30 June 2018
I don’t find any commonsense with your argument The fact that the tourist is for 10 days only would not make any sense. What is 10 days going to make on her life.
CD Bulos
Lawyer -
Saturday, 30 June 2018
Addendum
Sorry the number of days must be spelled out and what isl saying is if it is 20 days only then there is no sense not to believe her. It must be qualified. -
Monday, 22 October 2018
If person has mobile in malaysia and is in detention on visa expired may he use it ring to Australia rm.chipps
Immigration blog
This is a disgraced I had a client (A manager of a Peruvian Tour Operator visiting Australia with valid tourism visa and was detained at airport, she was handcuffed, they forced to wear a colour shirt while her sister was waiting outside for her. her mobile was confiscated and asked her for her password and they found the word work and immediately was accused that she was working in Australia without any proof then she was taken to detention. Her sister is an Australian citizen, the detainee had been sponsor financially by her sister in South America .....a Medical Doctor. She was not communicated for 48 hours and her Australian sister without knowing what had happened to her consequently her visa was cancelled and then sent back to a country she was touring for 10 days (Singapore) - No Drugs - No Criminal records - no terrorist but an incredible unfair saga......this will go soon to the media and we will see what happens - Complaints are being prepared for Department of Home Affairs, Ombudsman, The diplomatic Corps, Department of foreign Affairs both in Peru and Australia.............how far can they keep making horrible mistakes!