Consideration
107 There was no issue between the parties as to the existence of power, under the Act, to transfer Mr Graham between places of detention. The power is a necessary incident of the detention regime: Soh at 144 [83]. Similarly, Ryan J in VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9]-[10] held that the selection of a particular mode of detention is invalid only if it falls outside the definition of "immigration detention" in s 5 of the Act and that "the flexibility in the selection of a mode and place of detention which the various ... definitions [in s 5] afford does not, by implication, restrict the Minister's choice in a particular case or impose any statutory duty to consider alternative modes of detention" (at [10]). A Full Court cited this statement with apparent approval in SBEG v Commonwealth of Australia (2012) 208 FCR 235 at 247; [2012] FCAFC 189 at [49] (Keane CJ, Lander and Siopis JJ).
108 The questions which were debated were whether any procedural fairness obligations arose in relation to the ongoing detention of Mr Graham and, if so, whether those obligations had been satisfied by the Minister.
109 There can be no doubt that the decision to take Mr Graham into custody under s 189(1) of the Act impinged on his liberty. Such a fundamental interest would normally attract procedural fairness obligations on the part of the officer responsible for the decision. Mr Graham had become liable to detention because the Minister had cancelled his visa pursuant to s 501(3) of the Act and he had therefore become an unlawful non-citizen. The Minister's decision was not subject to procedural fairness requirements: see s 501(5). The detaining officer was, as a result of the Minister's decision, under a statutory obligation to detain Mr Graham.
110 As Mr Graham conceded, even if a duty of procedural fairness arose at that stage, its content was reduced to zero by the statutory scheme.
111 As already noted Mr Graham's submissions focussed on his ongoing detention at Goulburn Prison which was the subject of periodic reviews. The relevant interest which he identified was his interest in maintaining familial relationships.
112 Procedural fairness will only be owed where a power exists to destroy or prejudice a person's "rights or interests": Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258; [2010] HCA 23 at [11] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 352; [2010] HCA 41 at [74] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
113 The question which falls for determination is whether the interests identified by Mr Graham were sufficient to attract procedural fairness protections.
114 The authorities suggest that a relevant right is unlikely to be found in relation to decisions made by custodial authorities in respect to the management of detainees once they have been taken into custody. In Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119; [2015] VSC 593, the applicant challenged a decision to move her from communal accommodation in a prison to a cell elsewhere in the prison. While accepting that the move had significant practical effects on the applicant, McDonald J found that the decision did not attract a right to procedural fairness because it had not affected any of her legal rights or interests: at 125-126 [19]-[20], [24]. The relevant State legislation did not mandate that she should be accommodated in any particular section of the prison: at 126 [26]. McDonald J noted (at 127 [26]) Nettle JA's observation in Anderson v Pavic [2005] VSCA 244 at [33] that it was "unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible".
115 In Certain Children v Minister for Families and Children (2016) 51 VR 473; [2016] VSC 796 at [319], Garde J applied Moran to conclude that young persons in detention, who were transferred from youth justice facilities in Parkville and Malmsbury to a newly-created youth justice facility called the Grevillea Youth Justice Precinct, which was situated in the grounds of the adult male prison in Barwon, had no right to procedural fairness. The transfer decisions had been made by the Secretary to the Department of Health and Human Services under s 484 of the Children Youth and Families Act 2005 (Vic).
116 Other transfer decisions made under that power were the subject of consideration by John Dixon J in Certain Children v Minister for Families and Children (No 2) [2017] VSC 251. Decisions were made to transfer two children from Parkville to Grevillea. His Honour followed Garde J's judgment and concluded that the decisions did not attract a procedural fairness obligation: at [155]. His Honour noted that, while there was a disputed factual issue as to whether conditions at Grevillia would be materially worse for the detainees, the transfer decisions made under s 484 did "not involve a legal change of a fundamental nature" (at [150]). It was also relevant that the provisions in that Act, which provided for paramount consideration being given to the best interests of child detainees and decision-making principles, and which were intended to give guidance to the administration of the Act, were expressly excluded from applying to decisions made under s 484. Their exclusion meant that "[t]he routine course of management and administration of the detained children in appropriate centres remains as the prominent purpose of the power": at [152]-[153].
117 In his judgment (at [147]-[154]) John Dixon J distinguished ID v Director General, Department of Juvenile Justice (2008) 78 NSWLR 158; [2008] NSWSC 966. In that case, Johnson J found (at [187]-[200]) that the transfer of the plaintiffs from juvenile detention centres to adult correctional centres, pursuant to a power in s 28 of the Children (Detention Centres) Act 1987 (NSW), attracted an obligation to accord them procedural fairness. Each youth (who was over the age of 18 but under 21) had been sentenced to juvenile detention (rather than detention in an adult correctional centre) on the basis that the sentencing judge was satisfied that there were "special circumstances" justifying this course. While the relevant Act provided for the power of the Director-General of the Department of Juvenile Justice to undo the effect of the judicial order by way of an administrative decision, there was nothing in the scheme which indicated that this could be done without according the detainees procedural fairness (at 178 [188]). Because of the mode of sentencing, a legitimate expectation that each plaintiff would not be subject to an involuntary transfer without procedural fairness being shown to them was said to arise (at 178 [190]). His Honour concluded that such a transfer order was not merely a prison management decision. Rather, it involved "a fundamental change in the nature and quality of detention" to which a detainee would be subject, including the possibility that a longer period of custody would result (at 178 [192]). Relevantly, the judge stated that such decisions could be distinguished from those made in the adult prison system where "hundreds, if not thousands, of classification decisions are made concerning prisoners each year": at 178 [193].
118 A S v Secretary to the Department of Justice and Regulation [2017] VSC 310 is a related, but distinguishable, decision. Justice Jane Dixon found that the wife of a prisoner who was subject to an order by the Secretary made under s 43(1A) of the Corrections Act 1986 (Cth), which prohibited her from visiting all Victorian prisons for a period of 12 months, should have been accorded procedural fairness prior to that decision being made (at [107]). The plaintiff had been banned on the basis of a suspicion that she had trafficked unauthorised articles into the Metropolitan Remand Centre (at [19]). Her Honour considered that s 37(1) of that Act, which provided that, with the permission of the Governor, a prisoner's relatives or friends may enter a prison and visit the prisoner, conferred a "conditional right" upon the wife (at [84]). Statutory context was provided by s 47(1)(k), which stated that every prisoner has the right to receive at least one visit in each week under s 37. Her Honour did not consider it necessary to determine whether s 37(1) conferred a "legal right" (and noted that the plaintiff did not assert a common law right) but found that the plaintiff enjoyed a sufficient "interest" of the kind recognised by Brennan J in Kioa v West (1985) 159 CLR 550 at 619. As that interest was apt to be affected by the ban a right to procedural fairness was enlivened (at [84]).
119 Her Honour also appeared to identify a separate "social interest" which inhered in the wife as a family member and the marital partner of the prisoner and which, if diminished, was capable of having significant consequences on her welfare (at [89]) as well as on the welfare of the prisoner (at [90]). These interests were identified (at [90]) as being no less important than the professional interests which solicitors, who had been banned from visiting prisons, had earlier been held to enjoy: see Nicopoulos v Commissioner for Corrective Services (2004) (2004) 148 A Crim R 74 at 97; [2004] NSWSC 562 at [111]-[112] (Smart AJ); Reed v Commissioner for Corrective Services [2008] NSWSC 161 at [39] (Fullerton J).
120 At [94] her Honour distinguished the impugned decision from other decisions which placed conditions upon inmates and visitors to prisoners in the context of those visits. The imposition of such conditions, which were characterised as "mere administrative or managerial decision[s] that can be made without any procedural fairness towards the party affected" were found to be sufficiently different from a decision banning a family member from visitation at any Victorian prison for 12 months (at [94]). Her Honour also distinguished a range of cases on the basis that they concerned the interests of prisoners, rather than the interests of visitors (see, eg, at [102] and [112]).
121 Mr Graham does not complain about a decision to transfer him from one form of detention to another. Rather, he asserts an entitlement to be heard as to why he should be transferred from one detention facility to another of his choosing. The decisions relating to procedural protections (or the lack of them) in relation to the transfer of prisoners from one place of incarceration to another are not, therefore, directly in point. It is also to be observed that each of these case turned, in part at least, on the construction of statutory provisions regulating the making of transfer decisions. Nonetheless, these decisions demonstrate the reluctance of courts to require hearings before management decisions are made about the transfer of prisoners from one place of detention to another. Similar principles, in my view, apply to decisions, either actual or de facto, to maintain the status quo in respect to a particular detainee.
122 Once he was taken into detention Mr Graham had no right, under the Act or otherwise, to be held in any particular place of immigration detention. His management required decisions to be made as to the most appropriate available facility in which he was to be held. In my opinion he had no right to be heard in relation to a determination that he be held or remain in a particular facility. Despite the absence of any relevant right he, as it happened, was afforded the opportunity, in the course of case reviews, to make transfer requests. His real complaint is that these requests were not actioned to his satisfaction.
123 My conclusion derives support from the recent decision of the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1. The Court held that the statutory power in s 72(4) of the Maritime Powers Act 2013 (Cth), to detain and take to another place a person who was on a detained vessel, was not conditioned by procedural fairness. Chief Justice French found that there was "no appropriate administrative framework to afford persons to whom s 72 applies a meaningful opportunity to be heard" having regard to the fact that maritime officers exercising the power do so in a chain of command (at 541-542 [52]). Justices Hayne and Bell considered that any right, interest or expectation of such a person, for example an expectation of entering Australia, had already been defeated by the prior detention of the vessel pursuant to s 69: at 558-559 [117]. Justice Kiefel considered (at 606-607 [306]) that the plaintiff "could assert no right, interest or expectation in the outcome of the decision [as to where he might be taken and whether he should be detained in that process]. No opportunity for him to comment on these matters could arise". Justice Gageler (with whom Crennan J agreed) held that forcibly taking a person to a place against their will would have an adverse effect on that person's liberty and, potentially, other rights and interests depending on the conditions of the place to which that person was removed: at 622 [367]. Ultimately, however, he considered that the context of the maritime environment and its potential requirements of urgency was a key factor which told against an obligation of procedural fairness. To require procedural fairness in such circumstances would impair the operation of the legislation: at 623 [368]. Justice Keane (at 653 [500]) also held that there "was no occasion under the statute for a maritime officer to consult with the plaintiff as to the destination to which he was to be compulsorily removed". Consistently with the judgments of Hayne, Bell and Kiefel JJ, a person who is properly detained under the Act pursuant to s 189(1), such as Mr Graham, has no right or interest to be detained in any particular place. He or she can lawfully be moved to any place of immigration detention without attracting procedural fairness obligations. That being so, a decision not to transfer a detainee likewise need not be preceded by an opportunity for the detainee to be heard.
124 The evidence established that the immigration detention network, at any one time, manages over 2,000 detainees, 500 of whom are assessed as being of "high' or "extreme" risk. Placement decisions within that network require consideration of the capacity, security and constraints of the network, such that there would frequently be nothing a detainee could say about a placement decision that would outweigh those considerations. Having regard to Mr Graham's risk profile there were then no available alternatives (outside the Department's own facility on Christmas Island) to his placement in the Goulburn centre. His only preferred alternative was not accessible because the Tasmanian State authorities were unwilling to receive him into Risdon Prison despite being requested to do so. That being so, even if, contrary to my view, there was an obligation to accord procedural fairness in relation to dealing with his transfer requests the content of any such duty would effectively be reduced to nil: cf Soh at 146 [93].
125 For these reasons, Ground 2 must fail.