FEDERAL COURT OF AUSTRALIA

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Subject to order 3, the applicant is to pay the respondent’s costs, as agreed or assessed.

3.    If either party wishes to contend for a different costs order they are to notify the other party and Robertson J’s associate within seven days of the date of this order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant seeks relief from the Court in respect of two matters.

2    First, he applies for judicial review of a decision made by the respondent Minister on 8 May 2019 whereby the Minister cancelled the applicant’s Class BF Transitional (Permanent) visa under s 501(3) of the Migration Act 1958 (Cth). This is referred to as the cancellation decision. As the Minister stated, his decision was made “without natural justice”. Under s 501(3)(b), the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest. By s 501(5), “[t]he rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3)”.

3    One of the matters the Minister took into account in assessing the national interest as it related to the cancellation of the applicant’s visa was a New South Wales Police Force report (NSW Police report) prepared on 22 October 2018 which the Minister summarised as being a “submission of police that Mr CHAMOUN is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community.” He also found, relevantly, that the applicant was not stateless.

4    The applicant accepted that he had a “substantial criminal record” for the purposes of the character test: see s 501(7) of the Migration Act.

5    The second matter in respect of which the applicant applies for judicial review is that, having been taken into detention on 14 May 2019 at the Villawood Immigration Detention Centre in Sydney (Villawood IDC), on 17 May 2019 the Commander Detention Operations, Australian Border Force, made a decision to transfer the applicant to Yongah Hill Immigration Detention Centre in Northam, Western Australia (Yongah Hill IDC). This is referred to as the transfer decision. On 13 June 2019, the applicant was transferred there. The applicant was not given an opportunity to comment on the transfer decision before it was made.

6    The applicant has remained in immigration detention since 14 May 2019.

The grounds

7    The grounds of judicial review of the cancellation decision are that the Minister:

(a)    misunderstood his discretion under s 501(3)(b), as preventing him from providing the applicant with an opportunity to comment on his intention to cancel, relying on Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [63];

(b)    erred in the manner in which he dealt with the applicant’s possible statelessness, in particular by making material findings for which there was no evidence or which were legally unreasonable; and

(c)    erred in the manner in which he dealt with the NSW Police report allegations which showed either a failure to engage in an active intellectual process, apprehended bias, or legal unreasonableness.

8    The grounds of challenge to the transfer decision were summarised in submissions as follows:

The transfer decision is challenged on the basis that the Minister and his officers lacked lawful authority to make that decision; second, that the persons actually engaged in his transfer were not authorised to effect it; third, that to the extent the transfer was authorised by sections 189 and/or 196 of the Act, the transfer decision was legally unreasonable, or void for a failure to afford the applicant with natural justice; and finally that to the extent the transfer was authorised by section 273 of the Act, the transfer decision is amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and should be set aside.

(Strikethrough added.)

9    The ground shown as deleted was abandoned in the course of the hearing, between the two hearing dates, on production by the solicitor for the Minister of a substantial affidavit which, the applicant accepted, showed that the persons actually engaged in the transfer of the applicant were authorised to effect it.

10    Also to be noted is that the Minister did not rely on s 273 of the Migration Act in respect of the transfer of the applicant from Villawood IDC to Yongah Hill IDC. Section 273 provided that the Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained. That section also provided for regulations, making provision in relation to the operation and regulation of detention centres. It was common ground that no such regulations had been made.

11    The relief sought in respect of the transfer decision was a writ quashing the transfer decision, a permanent injunction prohibiting the Minister from further transferring the applicant away from Sydney while in detention, and damages in trespass. Senior Counsel for the applicant accepted that the reference to the Administrative Decisions (Judicial Review) Act did not now add anything to the case, it having been relevant, he contended, to the application for interlocutory relief which was overtaken by the matter being set down for early final hearing.

The evidence

12    The applicant relied on the following:

(a)    the affidavit of Elie Rahme affirmed 12 June 2019, being an affidavit of 14 paragraphs of which only the first 11 were read;

(b)    the affidavit of Amal Chamoun sworn 21 June 2019; and

(c)    the affidavit of Chanel Chamoun sworn 21 June 2019.

The last two affidavits were admitted but limited to the issue of the prejudice claimed to have been suffered by the applicant by reason of his transfer from Villawood IDC to Yongah Hill IDC.

13    The respondent relied on the following:

(a)    an affidavit of Latha Reardon affirmed 28 June 2019, together with its three annexures LR-1–LR-3;

(b)    an affidavit of Hervee Dejean affirmed on 6 August 2019, together with its exhibit HDD-1;

(c)    a copy of the Department’s submission to the Minister dated 8 April 2019 (exhibit 1); and

(d)    an email from the solicitors for the applicant to my associate, dated 6 September 2019, confirming the admission outlined at [14] below (exhibit 3)

(e)    Instrument of Authorisation 2015 DEL 15/113 (exhibit 4).

14    An issue arose as to a notice to admit: see Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1407. The upshot was an affidavit by Mr Peacock, Operational Assurance Director employed by Serco Australia Pty Ltd, affirmed on 3 September 2019, and the subsequent admission by the applicant, for the purposes of these proceedings only, of the truth of the facts identified in the respondent’s Notice to Admit Facts filed 8 August 2019 at [1] and [2(b)].  Those facts were that each person who detained the applicant during the transfer of the applicant from Villawood IDC to Yongah Hill IDC in June 2019 was an “officer” within the meaning of s 5(1) of the Migration Act and that each had met the character and training requirements specified in the Immigration Detention Facilities and Detainee Services Contract.

The statutory provisions

15    The provisions under which the cancellation decision was made were as follows:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

   (2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

   (3)    The Minister may:

    (a)    refuse to grant a visa to a person; or

    (b)    cancel a visa that has been granted to a person;

    if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

  (3A)    …

  (3B)    …

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

…

16    In relation to the transfer decision, ss 189 and 196 of the Migration Act provided as follows:

189     Detention of an unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

(2)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter the migration zone (other than an excised offshore place); and

   (b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(3)    If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person.

(3A)    If an officer knows or reasonably suspects that a person in a protected area:

(a)    is a citizen of Papua New Guinea; and

(b)    is an unlawful non-citizen;

the officer may detain the person.

(4)    If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)    is seeking to enter an excised offshore place; and

(b)    would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

(5)    In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

Note:    See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).

…

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

   (a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

   (b)    he or she is deported under section 200; or

   (c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

17    Relevant definitions in s 5(1) of the Migration Act were as follows:

detain means:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note:    This definition extends to persons covered by residence determinations (see section 197AC).

detainee means a person detained.

Note:    This definition extends to persons covered by residence determinations (see section 197AC).

…

immigration detention means:

(a)    being in the company of, and restrained by:

   (i)    an officer; or

(ii)    in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or

(b)    being held by, or on behalf of, an officer:

   (i)    in a detention centre established under this Act; or

(ii)    in a prison or remand centre of the Commonwealth, a State or a Territory; or

  (iii)    in a police station or watch house; or

(iv)    in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

   (v)    in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Note 1:    Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.

Note 2:    This definition extends to persons covered by residence determinations (see section 197AC).

The Minister’s cancellation decision

18    Insofar as relevant to the grounds of challenge, the reasons of the Minister for the cancellation decision were as follows.

4.    Section 501(3)(b) of the Act enables me to, without natural justice, cancel a visa that has been granted to a person if:

-    I reasonably suspect that the person does not pass the character test (as defined by s501(6)); and

-    I am satisfied that the cancellation is in the national interest.

5.    Under s501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s501(3).

6.    Pursuant to s501C(3), following a decision under s501(3) to refuse to grant or cancel a visa, the person who is the subject of the decision is to be notified of the decision and given information relevant to it and, except in a case where the person is not entitled to make representations, invited to make representations about possible revocation of the decision. Under s501C(4), if, and only if, the person makes representations in accordance with the invitation and satisfies me that they pass the character test, I may revoke the cancellation decision.

7.    I note that any representations made by Mr CHAMOUN in response to an invitation under s501C at the revocation stage can bear only on the question of whether or not he passes the character test not on the exercise of my residual discretion under s501(3).

8.    I further note that because Mr CHAMOUN has been sentenced to two terms of periodic detention, wherein the total of the time he spent in detention in relation to those terms was more than 12 months, he has a substantial criminal record as provided by s501(7)(d) and he objectively fails the character test under s501(6)(a). I am aware, therefore, that it would be futile for him to seek revocation under s501C(4) as he cannot satisfy me that he passes the character test.

9.    I note that I could have instead elected to consider Mr CHAMOUN’s visa cancellation under s501(2) of the Act, with natural justice and that, under that provision, the person is provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.

10.     However, I decided to proceed to make a decision in Mr CHAMOUN’s case under s501(3) without natural justice.

…

NATIONAL INTEREST

…

Criminal associations

38.    In assessing the national interest as it relates to the cancellation of Mr CHAMOUN’s visa, I have also considered the report of the New South Wales Police Force prepared on 22 October 2018 (NSW Police report). I note that Mr CHAMOUN has not had an opportunity to respond to this information.

39.    It is the submission of police that Mr CHAMOUN is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community.

…

50.    New South Wales Police believe that Mr CHAMOUN directs a number of persons to conduct criminal activities for the syndicate, and that he is indirectly involved in order to reduce his own criminality. The syndicate members use encrypted devices to communicate with each other to frustrate police investigations. It is the submission of New South Wales Police that the extraordinarily large amounts of cash spent by Mr CHAMOUN ‘clearly illustrates that he is a high ranking member, a director, within this criminal syndicate’, who purposely remains at arm’s length from these illegal activities.

51.    I find the information provided by the New South Wales Police Force to be detailed and credible, and supported by third party records. Based on the NSW Police report and the supporting evidence, I am satisfied that Mr CHAMOUN has engaged in other serious conduct by his high level association with a criminal syndicate that is involved in the importation and supply of prohibited drugs for large profits.

…

Conclusion

81.    Considering Mr CHAMOUN’s criminal conduct and the risk of him reoffending, as well as having regard to Mr CHAMOUN’s other serious conduct and the risk of him further engaging in other serious conduct, with particular consideration of the information provided by New South Wales Police Force, I am satisfied that it is in the national interest to cancel Mr CHAMOUN’s visa under s501(3)(b) of the Migration Act.

82.    I conclude that the information before me raises concerns that are of such a serious nature that the use of my discretionary power to cancel Mr CHAMOUN’s Class BF Transitional (Permanent) visa, without prior notice, is in the national interest.

…

OTHER CONSIDERATIONS

…

Claim of Statelessness

109.    In a letter dated 4 May 2017, Mr CHAMOUN’s representative confirms his birth in Lebanon, and states that Mr CHAMOUN is a citizen of Lebanon, by birth. In his application for Australian citizenship, Mr CHAMOUN indicated that he was born in Beirut, Lebanon. In this application, Mr CHAMOUN advised the Department that both of his parents were born in Lebanon. Mr CHAMOUN arrived in Australia using a Lebanese passport issued to his mother, Ms Victoria Chamoun, and her children, including Mr CHAMOUN.

110.    However, in a statutory declaration declared on 4 May 2017, Mr CHAMOUN writes, ‘I don’t have Lebanese citizenship, I don’t have any Citizenship at all’. In his application for Australian citizenship dated 23 October 2015, Mr CHAMOUN indicates that he holds permanent residence in, but was not a citizen of, Lebanon. He indicates he has not held citizenship of any country.

111.    On 6 September 2017, Mr CHAMOUN’s then agent, Ms O’Donoghue, contacted the Department and advised she had been instructed by Mr CHAMOUN that he was stateless, although no detail was provided.

112.    In a statutory declaration made by Mr CHAMOUN on 22 November 2018, he states that his parents are Assyrians who were born in Syria.

113.    Mr CHAMOUN does not outline the circumstances through which he claims to be stateless, nor does he explain the discrepancy in the information he has provided to the Department about the birthplace of his parents. In submissions in relation to Mr CHAMOUN’s application for Australian citizenship, his representative does not claim that Mr CHAMOUN is stateless.

114.    I had regard to generally available information stating that eligibility for Lebanese citizenship and Syrian citizenship is predominantly based on paternal ‘jus sanguinis, or ‘right of blood’, the principle that the nationality of a child is that of the country of nationality of the father.

115.    Taking into account information held by the Department and as noted above, I consider that Mr CHAMOUN would be eligible to apply for citizenship of the birth country of his father, that being either Lebanon or Syria, notwithstanding that his father departed and was subsequently granted Australian citizenship. I accordingly find that, as Mr CHAMOUN is not without a country of nationality that is bound to receive him, that being Lebanon or Syria, he is not stateless.

The submissions of the parties

The cancellation decision

Ground 1B

19    The applicant submitted that the Minister misunderstood his discretion under s 501(3)(b) as preventing him from providing the applicant with an opportunity to comment on his intention to cancel, relying on Ibrahim at [63].

20    The applicant submitted that the misapprehension by the Minister of the nature of his powers was evident from the reasons given for the decision. Paragraph [5] of the reasons referred to the rules of natural justice as not applying to a decision under s 501(3). At [9], the Minister noted that he could have elected instead to consider Mr Chamoun’s visa cancellation under s 501(2) of the Act “with natural justice”, and that under that provision the person was provided with a notice of intention, and the person was afforded an opportunity to provide the Department with information and “respond to any adverse information”. Paragraphs [6], [7] and [8] of the reasons noted that because Mr Chamoun appeared to have a substantial criminal record, and would objectively fail the character test, it would be futile for him to make representations to seek revocation under s 501C(4).

21    The applicant submitted that at no point in the reasons did the Minister consider the further live alternative, that while proceeding under s 501(3), while not necessarily according Mr Chamoun an opportunity to respond to any adverse information, the Minister nevertheless could have given Mr Chamoun the opportunity of providing information on some aspects of the application, especially in circumstances where there may have been doubt by the Minister as to the true facts of the matter. In Ibrahim, the Full Court concluded that the Minister had misconstrued his powers, treating the provisions as precluding natural justice, and not recognising that they permitted the Minister to invite submissions in his discretion. The Minister’s reasons in this matter were substantially similar to the Minister’s reasons that were found in Ibrahim at [29], [62] and [63], on their proper construction, to reveal the relevant misconception regarding his power, the applicant submitted.

22    The applicant submitted that the conclusion that the Minister so misunderstood his powers under s 501(3) was fortified by two matters. Later, a third matter was added: see the submission summarised in [31] below.

23    First, the applicant submitted, the NSW Police report was clearly materially relevant to the cancellation decision. While the applicant (in 2018, in the context of an unsuccessful citizenship application) had an opportunity to provide the Department with material concerning his criminal history, the applicant had had no opportunity to comment on the NSW Police report prior to the cancellation decision. The Minister was cognisant of this, it was submitted, but did not turn his mind to whether to give the applicant an opportunity to comment, notwithstanding the seriousness of the allegations contained in that report.

24    Second, the Minister was aware that the applicant had (in the context of his unsuccessful citizenship application) raised claims of statelessness. The applicant was born in Lebanon, but had lived in Australia since the age of eight. Conflicting material before the Minister indicated that the applicant’s parents were born in either Syria or Lebanon, the applicant submitted, which dispute the Minister was unable to resolve on the information before him. The Minister accepted, the applicant submitted, that he was not a citizen of either Syria or Lebanon, and should be taken inferentially to have accepted the applicant’s claim that he held no citizenship of any country. The applicant submitted the Minister did not tum his mind to seeking information from the applicant to clarify this issue.

25    If the applicant was in fact stateless, he submitted, the consequences of the Minister’s decision to cancel his visa could include indefinite detention of the applicant for his natural life, at least partly by reason of untested and uncorroborated allegations of criminal conduct. The Minister’s cancellation of the applicant’s visa in the national interest would in itself raise significant impediments to his subsequent release into the Australian community, or to any third country. The applicant submitted that the Minister’s actions in making a decision that potentially held such significant consequences, without taking the relatively simple step of providing him with an opportunity to comment, was only explicable if the Minister considered himself to have been precluded by the legislation, in cancelling visas in the national interest, from providing the applicant with an opportunity to comment.

26    In cancelling visas under s 501(3), the Minister had the power to seek information from the applicant before exercising that discretion, and a misapprehension as to that matter which was material (in the sense that had such opportunity been offered to the applicant, the information received may have resulted in a different outcome) resulted in jurisdictional error, the applicant submitted.

27    The applicant submitted that the Minister had expressly resiled from any submission that, had the applicant been permitted to comment on the NSW Police report, such comment could not possibly have made a difference to the Minister’s exercise of power. The real possibility that the applicant was stateless was a matter that would have been directly material to the Minister’s decision.

28    The Minister submitted on this point that the reasoning in Ibrahim did not apply to s 501(3). In his written submissions dated 20 August 2019, the Minister submitted that if those submissions as to construction were not accepted, he accepted that he proceeded on the basis of the alleged misapprehension. As will appear, this became an issue on the resumed hearing in light of the subsequent decision of the Full Court in Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152.

29    Alternatively, the Minister submitted any misapprehension was immaterial. The Minister submitted that, assuming he in fact proceeded on the misapprehension alleged by the applicant, this was immaterial because he would, in any event, inevitably have proceeded as he did. It was submitted that the Minister was aware of, and exercised, the precise choice given by the existence of s 501(2), on the one hand, and s 501(3), on the other. The Minister expressly noted this at [9]. At [10], the Minister explained that he decided, instead, to make a decision under s 501(3), without natural justice. In the face of the express choice in fact made with knowledge of the consequences for the applicant, it was fanciful to suppose, it was submitted, that the Minister would have chosen to afford natural justice under s 501(3) having rejected the option of doing precisely that under s 501(2). That would have entailed doing the things referred to in his reasons at [9] which the Minister expressly decided not to do. In short, the Minister did turn his mind to whether or not to give the applicant an opportunity to comment and chose not to.

30    The Minister also formally submitted that Ibrahim was wrong to conclude that any misunderstanding of the kind found in that case was a jurisdictional error. However, the Minister accepted the reasoning in Ibrahim bound this Court to a contrary conclusion. I note that in Nguyen v Minister for Home Affairs [2019] FCAFC 128, decided on 9 August 2019, the Full Court adopted the construction of s 501BA in Ibrahim, although I note that in Nguyen the Minister did not argue for any different construction: see the reasons at [42].

31    The decision of the Full Court in Burgess, to which I have referred above, had a number of consequences for the submissions of each party on this ground. This was because in Burgess the Full Court held, apparently without argument directed to any differences between ss 501BA and 501(3), that the reasoning in Ibrahim in relation to the construction of s 501BA applied also to s 501(3) but that, by majority, the Assistant Minister in Burgess did not make that error as a matter of fact. First, the applicant tendered as an admission under s 87 of the Evidence Act 1995 (Cth) the sentence from the Minister’s written submissions in this matter: “If these submissions [as to construction] are not accepted, the Minister accepts that he proceeded on the basis of the alleged misapprehension.” The applicant submitted that in light of that admission there was no need to look at the reasons of the Minister to infer what his state of mind was at the relevant time. The Minister did not accept that this sentence constituted an admission. Second, the Minister submitted that I was not bound by Burgess on the issue of construction as it was decided against the winning party and therefore unnecessary to the majority’s ultimate conclusion, and that I should not follow Burgess on that issue because the Ministers arguments before me were not there put. Third, the Minister submitted formally that Burgess was wrongly decided on the issue of construction. Fourth, the Minister argued that I was bound by the analysis of the majority in Burgess of the facts since the reasoning of the Assistant Minister was substantially the same in that case as the Minister’s reasoning in this case.

Ground 2

32    The applicant next submitted that the Minister erred in the manner in which he dealt with the applicant’s possible statelessness and in particular by making material findings for which there was no evidence.

33    The applicant submitted that the Minister’s reasoning on this issue therefore rested on the following two implied findings:

 19.1    That the applicant’s father was a national of either Lebanon or Syria; and

19.2    That the applicant’s “eligibility to apply” to whichever of the two countries his father was a national of resulted in an obligation on the part of that country to receive the applicant.

34    The applicant submitted the evidence at its highest before the Minister was simply that the applicant’s father was born in either Lebanon or Syria. There was no evidence before the Minister that the applicant’s father was a national or citizen of either country. Further, the applicant submitted, there was no evidence before the Minister that, even if the applicant was eligible to apply for citizenship to either Lebanon or Syria, either country was bound to receive him.

35    The applicant submitted that there was no evidence for the Minister’s findings, on which the Minister’s reasoning in respect of the issue of statelessness rested.

36    In relation to the findings about statelessness, the Minister submitted that this was not a case of “no evidence”. The Minister did not accept that the applicant was not a citizen of Lebanon or Syria or that he was stateless. At [114]-[115] of his reasons, the Minister concluded that the applicant was not stateless, because he could obtain Lebanese or Syrian nationality as that was the nationality of his father. As the Minister said at [134]: “I consider that [the applicant] may be a national of either Lebanon or of Syria”. The Minister submitted there was material to support that reasoning: the applicant said both his parents were born in Lebanon; in a statutory declaration made by the applicant he said that his parents were born in Syria; there was generally available information that eligibility for Lebanese citizenship and Syrian citizenship was predominantly based on paternal jus sanguinis; these matters supported the conclusion that the applicant could obtain Lebanese or Syrian citizenship, on the basis that his father was born in one of these countries. It was an open inference that, the applicant’s father having been born in one of these countries, he obtained citizenship of that country. Even in a country where citizenship was conferred by descent rather than place of birth, the fact of birth in that country provided a basis to infer a familial connection with the country and, hence, citizenship, the Minister submitted.

37    There was also other material to support the finding, the Minister submitted, referring to Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [65], quoting L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34]. There was a statement by the applicant’s representatives in May 2017 that the applicant was a citizen of Lebanon by birth, and there was the applicant’s own statements that he was born in Lebanon. The Minister submitted that these matters were not contradicted by the evidence that the applicant had filed concerning his citizenship. This ground of review must be decided on the basis of the evidence before the Minister, it was submitted.

38    The Minister submitted that once it was concluded that there was evidence to support the Minister’s finding that the applicant was able to obtain Lebanese or Syrian citizenship, it must follow that it was open to infer that one of Lebanon or Syria would therefore be bound to receive the applicant. That was an ordinary incident of citizenship, the Minister submitted, referring to Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322 at [119] and to Plaintiff M70/2011 v Minister for Immigration and Citizenship [2000] HCA 32; 244 CLR 144 at [92].

39    The Minister also submitted that any error was not a jurisdictional error, as the Minister’s finding concerning the applicant’s claim of statelessness was not a “critical step” in the Minister’s ultimate conclusion. The Minister referred, by way of example, to Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221; 226 FCR 154 at [31]–[32], and also to: SZTGR v Minister for Immigration and Border Protection [2014] FCA 1385 at [19]–[22]; Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [42]; Anaki v Minister for Immigration and Border Protection [2018] FCAFC 195 at [18]–[22]; and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63]–[73]. The Minister contrasted Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [111] and [132]. The Minister submitted that his finding was not on a subject which conditioned the exercise of his power, and was not otherwise required by the Migration Act; rather, it was a matter which the Minister thought appropriate to consider in the exercise of his discretion. Reading the Minister’s reasons as a whole, it was not a finding that could be described as “critical” to the Minister’s ultimate conclusion, it was submitted. So much was evidenced by the absence of mention of the matter from the Minister’s concluding reasons, at [139]-[145], he submitted. The Minister submitted that, given the other reasons for the cancellation decision, the applicant had not demonstrated that the Minister’s conclusions about the applicant’s possible statelessness were a decisive factor.

Ground 3

40    The applicant submitted that the Minister erred in the manner in which he dealt with the NSW Police report which showed either: a failure to engage in an active intellectual process; apprehended bias; or legal unreasonableness.

41    The applicant submitted that there were a number of allegations in that report in respect of which no corroborative material was provided, notwithstanding that the New South Wales Police should have held some such material, concerning, for example: the alleged seizure of money and an encrypted device from the applicant in 2014; the discovery of large sums of money at an address in Canberra Street, St Johns Park; that forensic testing of the plastic bags containing that money returned the applicant’s fingerprints; and that a Michael [XXX] had been arrested for possession of large amounts of prohibited drugs.

42    Further, the applicant submitted, no basis for a number of the allegations was identified in the report including, for example: that persons residing at the address in Canberra Street formed part of a “syndicate”; that the “syndicate” was connected with an (another) unidentified address from where large amounts of methylamphetamine were found; that the majority of funds lost by Michael [XXX] at Crown Casino, Melbourne between August and November 2016 belonged to the applicant; and that the applicant’s income was from illegitimate sources mostly derived from the large scale of sales of prohibited drugs.

43    In addition, the applicant submitted, a number of the allegations in the report were either inconsistent or misleading: the date for Michael [XXX]’s arrest post-dated the report; the report did not refer to the applicant’s convictions but rather the offences the applicant had been charged with (which included two drug offences but with no explanation provided for presumably their dismissal or withdrawal); and it included an allegation that the applicant’s declared income for the financial year 2016 was inconsistent with the records obtained by the New South Wales Police, but no records included with the report related to the 2016 financial year.

44    The applicant submitted that some of the content in the NSW Police report was also inconsistent with findings made by the Minister. The report identified the applicant’s mother in law, Therese Tarazi, as the sole carer of each of the applicant’s children; stated that the applicant had a limited relationship with his children; and stated that he did not support them financially. The Minister by contrast found that the applicant had custody of his older daughter, Chanel, that he had “regular contact and a strong bond” with his remaining three sons (at [97]), and supported all of his children “financially, practically and emotionally” (at [94]).

45    The applicant submitted that the authors of the report were not identified as having any personal knowledge as to the allegations. There was no other material before the Minister, the applicant submitted, that was probative of any of the NSW Police report allegations, and in particular that the applicant was involved in the alleged “syndicate”. Ultimately the allegation that the applicant was a high ranking member of this “syndicate” was entirely speculative.

46    In exercising his powers under section 501(3), the applicant submitted, the Minister was “under a general legal obligation to consider the merits” of the case before him and “engage in an active intellectual process”, referring to: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46], noting the caveats applicable to any such review at [45], [47]-[48]. The applicant submitted that obligation was pronounced in an exercise of powers under s 501(3), given that it involved a personal decision by the Minister ordinarily made without notice to the affected party. The Minister in his reasons did not advert in any manner to any of the deficiencies identified above in the NSW Police report, instead simply reciting the relevant material and in effect wholly accepting it. That lack of critical consideration of the report, given it was materially relevant to his decision, led to jurisdictional error, the applicant submitted.

47    The respondent Minister submitted that this contention must fail on the facts. It was submitted that the Minister considered the NSW Police report at [38]-[51] of the reasons for decision. The report was accompanied by a number of documents which supported its contents, including search warrants, casino records, vehicle purchases, and tax and Centrelink records. The Minister was entitled to rely on a report from a reputable law enforcement authority even if he was not provided with supporting material for each point which it made, or express confirmation that the authors of the report had personal knowledge of the allegations.

48    The Minister submitted that there was nothing inconsistent or misleading about the fact that the report referred to charged offences or the mere absence of supporting documentation concerning the applicant’s declared income for the financial year 2016.

49    The Minister submitted that he made no findings based on the NSW Police report in relation to the applicant’s contact with and support of his children. In this respect reference was made to [89], [94] and [97] of the Minister’s reasons. It was submitted that it was clear that in relation to the applicant’s contact with and support of his children, the Minister preferred other evidence to the passing references in the NSW Police report, further evidencing an active engagement with and assessment of the report.

50    The Minister submitted that the applicant’s submissions on this ground required a level of scrutiny by the Minister of the NSW Police report far beyond that required to establish an “active intellectual process”. He submitted this was a classic example of the slide into impermissible merits review which can occur in relation to an “inadequate consideration” ground.

Ground 4

51    The applicant next submitted that the Minister’s conduct gave rise to an apprehension of bias. The submission was that the Minister decided this case other than on its merits by reason of the existence of serious allegations made against the applicant by the New South Wales Police, and particularly his participation in organised crime and the importation of drugs. The feared deviation arose from the Minister’s failure to consider that the allegations against the applicant may have been unfounded or inaccurate, it was submitted.

52    The applicant submitted that the conclusion that the Minister might have been so committed to an adverse exercise of his discretion that his mind might not have been open to persuasion by evidence and arguments submitted by or on behalf of the applicant was compelling, given that:

(i)    Nothing in the NSWPF submissions suggested that immediate or urgent action was required, particularly noting that no criminal charges were pending (or apparently planned) in respect of the applicant;

(ii)    The numerous deficiencies in the NSWPF submissions identified above;

(iii)    The applicant had been lawfully resident in the community without conviction for any serious crime (noting however the conviction for common assault) in the past 13 years;

(iv)    The Minister’s election to proceed under section 501(3) with the result that the applicant could never make submissions on the NSWPF submission;

(v)    The Minister’s refusal to exercise his discretionary power to invite the applicant to provide information prior to his decision (to the extent that he correctly understood he had such power, which is denied); and

(vi)    His effective concession in these proceedings to the effect that such opportunity may have resulted in a different outcome, ought lead to this ground being upheld.

53    The Minister submitted that the mere fact that he decided to proceed without affording the applicant natural justice could not establish that he might have prejudged his decision whether or not to cancel the applicant’s visa. Section 501 gave the Minister the choice to proceed in this way. The Minister’s reasons explained that choice. To adopt a course permitted by the Migration Act could not evidence an apprehension of bias, the Minister submitted. The Minister submitted that his ability to proceed under s 501(3) was not conditioned on the New South Wales Police suggesting a need for urgent action; nor on a conclusion that the applicant could not have made any submissions capable of affecting the Minister’s decision whether or not to cancel his visa.

54    The Minister submitted that, having regard to his submissions in relation to Ground 3, the applicant’s criticism of the way in which the Minister addressed the NSW Police report did not establish a reasonable apprehension of bias, nor did the applicant’s criminal record while in the community.

55    The Minister submitted that he cancelled the applicant’s visa using a statutory process that was open to him, and which inherently involved decisions being made on the basis of adverse information to which people did not have the opportunity to respond. There was nothing to suggest that the Minister approached the decision otherwise than on its legal and factual merits. To the contrary, the Minister’s reasons explained why, on the merits, he made the decision he did, it was submitted.

Ground 5

56    The applicant next submitted that the cancellation decision was also legally unreasonable for the reasons put in relation to Ground 2 (the Minister’s approach to the issue of the applicant’s potential statelessness) and Ground 3 (the Minister’s acceptance without critical consideration of the NSW Police report), and the matters identified at [52] above.

57    In addition and with respect to the Minister’s approach to the issue of the applicant’s potential statelessness, the cancellation decision noted, at [113], apparently as a basis to disregard the applicant’s claims that he was stateless, that the applicant’s submissions for citizenship did not raise the issue. Statelessness was not ordinarily a relevant consideration in the context of the grant or refusal of citizenship, as an adverse decision did not result in either the legal or practical consequence of removal from the country. There would therefore have been no reason for that matter to have been agitated in those submissions, the applicant submitted, referring to Kassem v Minister for Home Affairs [2019] FCA 1196 at [74]-[76].

58    Here, the applicant submitted, both the facts found (as to the applicant’s association with the “syndicate”, and his ability to return to either Lebanon or Syria), as well as the process by which the Minister arrived at his decision, were legally unreasonable. As to former, the applicant submitted that this was effectively for the reasons in respect of Grounds 2 and 3.

59    In respect of the process employed, the applicant submitted, the Minister relied materially on facts ultimately arrived at speculatively, in circumstances where the applicant was in a position to clarify material matters; no clear detriment arose from affording the applicant an opportunity to comment; and the decision had dire consequences for the applicant and his family (including four Australian children), including the possibility of indefinite detention of the applicant. Nonetheless no opportunity was provided for comment. For these reasons, the decision was legally unreasonable, the applicant submitted.

60    The Minister submitted that none of these distinct complaints had any substance. First, the Minister submitted, the complaints concerning the Minister’s findings as to the applicant’s statelessness and the NSW Police report did not, for the reasons he had already submitted, establish that his decision was irrational or illogical. In this respect the Minister referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. Second, the Minister submitted, the applicant complained that the Minister relied on the absence of information in the applicant’s citizenship submissions concerning statelessness, when that issue was irrelevant to that application. This directed attention to the Minister’s reasons, at [113]:

Mr CHAMOUN does not outline the circumstances through which he claims to be stateless, nor does he explain the discrepancy in the information he has provided to the Department about the birthplace of his parents. In submissions in relation to Mr CHAMOUN’s applicant for Australian citizenship, his representative does not claim that Mr CHAMOUN is stateless.

The Minister submitted this paragraph was directed at inconsistencies in information provided by the applicant and his representatives. Nothing about that consideration was unreasonable. To the contrary, the absence of explanation for an assertion, the existence of other evidence inconsistent with the assertion, and the making of a contrary assertion at a different time, were all matters which a decision-maker – including one such as this Court – may properly take into account in assessing the credibility of an assertion.

61    In any event, the Minister submitted, it was the applicant himself who raised the matter of statelessness in his citizenship application, in a statutory declaration which was submitted in support of his citizenship application. It was directly contradicted by the statement by his representatives in support of the same application that he was a Lebanese citizen by birth, the Minister submitted. It was open to the Minister, he submitted, to take into account the fact that the applicant’s assertion of statelessness in connection with his citizenship application was unexplained.

62    Third, the Minister submitted, the applicant complained of the Minister’s decision to proceed under s 501(3) with the result that he had no opportunity to comment. That was a course the Migration Act left open to the Minister. Given the nature of the Minister’s findings concerning the applicant, and the stringency of this ground of review (referring to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [11], [52], [135]), it could not be said that the decision to adopt this course was outside the bounds reasonably open to the Minister. The mere fact that it would be futile for the applicant to seek revocation did not render the decision to proceed under s 501(3) legally unreasonable: that was a necessary possibility in some cases given the terms of the Migration Act. It was controlled by the requirement that the Minister exercised power under s 501(3) only when satisfied that this was in the national interest. The Minister was so satisfied here and no challenge was directed to that conclusion.

The transfer decision

63    In relation to the transfer decision, the applicant submitted, first, that the Minister lacked power to transfer the applicant. The applicant submitted that any construction of the relevant statutory powers under the Migration Act by reading in implied powers to transfer detainees would have to be done with regard to the fact that such transfers had the clear potential to affect a person’s residual liberty. The Court should be slow to reach any such construction, the applicant submitted. Implying such powers in circumstances where the Minister had had power to put in place the relevant regulations under s 273, but had not done so, would both directly affect the liberty of detainees and sanction the avoidance of a proper legislative and governance framework to ensure that any decisions were made properly and with authority, the applicant submitted. Accepting that the power to detain under ss 189 and 196 impliedly allowed the transfer of a person insofar as was reasonably necessary to effect such detention, the applicant submitted that the continued applicability of any such implied power to the applicant’s circumstances was not apparent. The applicant submitted that it was for the Minister to prove the lawful justification for his detention. At the time of his transfer, the applicant had already been “detained”, for the purposes of s 189 of the Migration Act, at Villawood IDC for a month. The applicant submitted that no incident was identified by the Minister as having arisen in detention that made necessary the applicant’s transfer across the country.

64    Second, the applicant submitted that a material fact the transfer decision rested on was a finding that the applicant had “known links to organised crime networks” (referring to a “placement” minute authored by the Commander Detention Operations, dated 17 May 2019, at [19]), which finding appeared to have been made on the sole basis of the NSW Police report. The decision was therefore legally unreasonable for the same reasons as identified in the applicant’s submissions in respect of Ground 5, he submitted. The applicant submitted that the transfer decision went further than the cancellation decision in making findings that the applicant was associated with the “Assyrian Organised Crime Network”, which “network” was active in South Western Sydney and therefore gave rise to a risk to safety and security at Villawood IDC, referring to the placement minute at [17]. The applicant submitted that no basis (or indeed any reference to any such “Assyrian Organised Crime Network”) could be identified in any of the material on which the transfer decision was based. These findings were also clearly material to the transfer decision, and for that reason it was legally unreasonable, the applicant submitted.

65    Third, the applicant submitted that he was denied procedural fairness in the making of the transfer decision. As the transfer decision had materially affected his rights (including by way of denying him contact with his minor children and wider family), the applicant submitted there was a duty to afford him procedural fairness before transferring him, referring to Soh v Commonwealth [2008] FCA 520; 220 FCR 127 per Madgwick J at [96]-[97]. There could be no doubt, the applicant submitted, that he was not afforded procedural fairness. The applicant sought to distinguish Graham v Minister for Immigration and Border Protection [2018] FCA 1012 on the basis that in that case the applicant asserted “an entitlement to be heard as to why he should be transferred from one detention facility to another of his choosing”, as recorded at [121], rather than an entitlement to comment on a decision to transfer him.

66    The applicant was detained at Yongah Hill IDC by the Minister or on his behalf. This followed, the applicant submitted, as the direct and intentional result of the transfer decision and the subsequent transfer. Invalidity of the transfer decision and/or unlawfulness in the physical transfer itself resulted in his continued detention at Yongah Hill IDC (as opposed to Villawood IDC) being unlawful, the applicant submitted.

67    The applicant submitted that he had suffered both limitations to his liberty and damage as a result of the transfer, being primarily the prevention of physical contact with his family and in particular his four minor children. The transfer took place in circumstances where the applicant had no notice of the decision except shortly before the transfer (and notwithstanding that the decision itself was approved almost one month prior), he submitted, and where the applicant had squarely put the Minister on notice of the harm that he would suffer from the same. He should be compensated for the damage suffered, the applicant submitted.

68    The Minister submitted that the power to transfer a person in immigration detention from one place of immigration detention to another was conferred by, or at least implied having regard to, ss 189(1) and 196 of the Migration Act and the definitions of “detain” and “immigration detention” in s 5(1). The power was not sourced in s 273, he submitted. The Minister referred to: NAFC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1587; 126 FCR 99 at [21]–[22]; VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [10]; Soh v The Commonwealth [2008] FCA 520; 220 FCR 127 at [83]; Minister for Immigration and Citizenship v MZYLE (No 1) [2011] FCA 1210; 123 ALD 548 at [26]; and SBEG v The Commonwealth [2012] FCAFC 189; 208 FCR 235 at [49], [64] at [107]. The power was not limited to a transfer that was, objectively, “reasonably necessary”. “[T]he words ‘and includes taking such action and using such force as are reasonably necessary to do so’ are words of extension, not limitation”, the Minister submitted, referring to VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9], quoted in Graham v Minister for Immigration and Border Protection [2018] FCA 1012 at [129].

69    At most, the Minister submitted, reasonable necessity was a matter for the satisfaction of the officers making the transfer: Soh at [83]; Graham at [129]-[130]. In any event, here, there was no basis to doubt that the transfer was and was thought to be reasonably necessary, given the placement minute and Ms Reardon’s affidavit evidence at [5]-[7] and [16]. The Minister submitted that the applicant was not assisted by the proposition that, in a false imprisonment or habeas corpus case, the onus is on the detainer to justify the lawfulness of the plaintiff’s detention. Here, there was no doubt that the applicant was lawfully detained, because his visa had been cancelled. The onus was on the applicant to demonstrate error amenable to judicial review in relation to the transfer decision.

70    In relation to the claim of legal unreasonableness, the Minister referred to Soh at [83] and to Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365 at [218]. Further, the Minister submitted, the evidence before the officer responsible for the transfer decision was the placement minute. To the extent the decision relied on the NSW Police report, that reliance was reasonable. The fact that the placement minute may have relied on other material, going beyond that referred to in the Minister’s reasons for cancelling the applicant’s visa, did not establish that reliance upon it rendered the transfer decision legally unreasonable, the Minister submitted.

71    In relation to the claim of procedural fairness, the Minister submitted that the applicant’s contention must fail in light of the decision in Graham at [123]. The Minister submitted that the Court should follow that decision unless persuaded it was plainly wrong, and that the Court should not be so persuaded; to the contrary, the decision in Graham was clearly right, for the reasons Tracey J there gave. The applicant had not provided a basis to distinguish Graham, the Minister submitted; there was no relevant difference between being heard as to why a transfer should occur and commenting on a proposed transfer.

72    The Minister submitted that even if the applicant was correct that his transfer to Yongah Hill IDC was beyond power, his claims to relief should be rejected. First, the Minister submitted that the Court should not order his retransfer to Villawood IDC, as a matter of discretion. Second, the Minister submitted that there was no justification for granting a permanent injunction restraining transfer of the applicant away from Sydney: even if the applicant’s transfer to Yongah Hill IDC was beyond power, it would not follow that a future transfer would be beyond power. Third, the Minister submitted that any claim for damages must fail because the applicant would, in any event, have been detained at Villawood IDC, referring to Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251.

Consideration

The cancellation decision

Ground 1B – claimed misunderstanding of the operation of s 501(3)

73    This ground arose out of the recent decision of the Full Court in Ibrahim, delivered on 30 May 2019, which concerned the power in s 501BA(2) of the Migration Act. The argument on each side also took into account a still later decision of the Full Court, Burgess, handed down on 30 August 2019 between the first day of hearing of the present application and the resumed hearing.

74    Before Burgess was handed down, the Minister had sought to distinguish Ibrahim on the basis that the present power was s 501(3) rather than s 501BA(2), and had accepted, subject to a question of materiality, that if he failed in that submission then “he proceeded on the basis of the alleged misapprehension”. As I have said above, at [31], that “admission” was tendered by the applicant on the resumed hearing. I shall return to this issue below.

75    It is first important to identify what Ibrahim decided and then to examine the circumstances in which Burgess came to be decided.

76    In Ibrahim, in a joint judgment of White, Perry and Charlesworth JJ, it was held at [26] that as a matter of construction, s 501BA(3) was to be understood as removing any obligation on the Minister to afford natural justice when exercising the power under s 501BA(2), but not as prohibiting the Minister from doing so. It was held that it was for the Minister to decide, within the limits of the Migration Act, how he or she would go about making the decision contemplated by s 501BA(2). Just as the Assistant Minister in that case had had the power to seek more information from the Department before making his decision, so also did he have the power to seek information from the appellant.

77    The Full Court then addressed the question whether, as a matter of fact, the Assistant Minister misunderstood his power and concluded, at [46]-[49], that he did.

78    The sequence of events was that following the reservation of judgment on the appeal in Burgess, Ibrahim was decided. As recorded by the majority in Burgess at [81], neither party to the appeal in that case applied to re-open argument after judgment on the appeal in Ibrahim had been delivered.

79    In Burgess, all three judges, Kerr, White and Charlesworth JJ, adopted the reasoning in Ibrahim and applied it to s 501(3). The reasoning on this point can be found in Burgess at [27] (Kerr J) and at [83] and [85] (White and Charlesworth JJ).

80    As I have noted above, given these circumstances, the Minister submitted before me that Burgess was not binding authority on this point. The Minister also formally submitted that both Ibrahim and Burgess were wrongly decided.

81    Contrary to the submissions of the Minister that the reasoning in Ibrahim does not apply to s 501(3), that Burgess is not binding authority on me because it decided the point contrary to the winning party (the Minister), and that I should not follow Burgess because the point that s 501(3) was different to s 501BA(3) was not there argued, I would follow the decision in Burgess in relation to the construction of s 501(3). That is not least because it seems to me that it would be a strange conclusion, as a matter of statutory construction, to hold that the Minister could not, although he might not be obliged to, seek further material from the applicant even where he wished to do so in relation to a particular issue. That was how the case was ultimately put on behalf of the applicant. I do not accept the Minister’s submission, developed orally, that because the Minister has a choice, within s 501, to proceed with or without natural justice, it is contrary to the scheme of s 501 for the Minister to be able to seek further information from an applicant if he so desires. In my opinion, that choice is facilitative, and I would not regard it as limiting the Minister’s powers. Nor do I accept the Minister’s submission that the availability of a revocation mechanism in s 501C, with an attendant entitlement to make representations, is significant, as the (implicitly, exclusive) mechanism Parliament has chosen for giving a person affected by a decision under s 501(3) an opportunity to be heard. That revocation power is enlivened only where “the person satisfies the Minister that the person passes the character test (as defined by section 501)”. To accept this submission would mean that, in a case such as the present where there is no issue that the applicant fails the character test, the Minister could not in any useful way seek further information to inform his determination of what is required by the national interest under s 501(3)(d), or in relation to discretionary factors generally under s 501(3), even where he thought that would assist him.

82    The second aspect of Burgess was that the majority, at [88]-[90], (White and Charlesworth JJ, Kerr J dissenting on this point) held that the error of construction was not established on the evidence. Their Honours said:

… Unlike the reasons given by the Assistant Minister in Ibrahim, the Statement of Reasons together with the departmental submission do not demonstrate error. The departmental submission correctly stated that the Assistant Minister “may decide to” cancel Mr Burgess’s visa under s 501(3)(b) “without natural justice”. The Assistant Minister correctly stated that s 501(3)(b) of the Act enabled him to cancel a visa without natural justice. The Statement of Reasons correctly summarised the effect of s 501(5) of the Act, namely that there was no obligation to accord natural justice in the exercise of the s 501(3) cancellation power. In short, the reasons do not suggest an understanding by the Assistant Minister that he could proceed under s 501(3)(b) only without providing natural justice.

The arguments advanced by Mr Burgess rest not so much on what is said in the Statement of Reasons or the departmental submission but on what is not said. However, the mere absence of a reference in the material to there being an option to accord natural justice does not of itself support an inference that the Assistant Minister erroneously believed he had no such option. Similarly, whilst the materials support an inference that the Assistant Minster was presented with a binary choice between the course of action provided for under s 501(2) and the course of action provided for under s 501(3), it does not follow that the Assistant Minister misunderstood that the latter course obliged him not to give Mr Burgess an opportunity to be heard.

It is also pertinent in our view that the Assistant Minister did understand that he could cancel the appellant’s visa under s 501 after according the appellant procedural fairness. That was by proceeding under s 501(2). He decided not to proceed under that section.

83    It is necessary therefore to consider what the Minister did in the present case. The submission by the Department to the Minister said that the Minister may decide to undertake a consideration of cancellation under s 501(2), with natural justice. Under this provision, the submission said, the person is provided with a Notice of Intention to Consider Cancellation and will have 28 days in which to respond to the notice. This gives the person an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, the submission said, before a decision is made. The submission continued:

Alternatively, you may decide to undertake a consideration of cancellation under s501(3)(b) of the Act, without natural justice. Under this provision you may cancel a person’s visa if you reasonably suspect the person does not pass the character test and you are satisfied that the cancellation is in the national interest. The person is not given notice of the cancellation consideration and is therefore not afforded any opportunity to provide the Department with information pertaining to their circumstances or to respond to any adverse information, before a decision is made. This power may only be exercised by a Minister, personally.

…

Should you be minded to exercise your power to cancel Mr CHAMOUN’s visa under s501(3) of the Act without natural justice, you should also note that:

a.    section 501C of the Act provides that, following a decision under s501(3) to refuse or cancel a visa, the person who is the subject of the decision, except where they are not entitled to make representations about revocation of the decision, must be invited to make representations about possible revocation of the decision, and you may revoke the decision only if the person makes representations in accordance with the invitation and satisfies you that they pass the character test; the effect of s 501C(10) and regulation 2.52(7) is that a person must be in immigration detention to be entitled to make such representations;

b.    however, any representations made in response to an invitation under s501C at the revocation stage can bear only on the question of whether or not he passes the character test; any representations on discretionary matters would be irrelevant to the exercise of your revocation power.

c.    in Mr CHAMOUN’s case it will be futile for him to make representations in support of revocation pursuant to an invitation under s501C(3) as, on the basis of information available to the Department, he objectively fails the character test by virtue of his ‘substantial criminal record’. Mr CHAMOUN therefore cannot satisfy you that he passes the character test.

84    Although I am dealing with findings of fact, and I therefore do not accept the Minister’s submission that I am bound on this aspect of the case by the findings of the majority in Burgess, I note that the submission by the Department here seems to be in the same terms as the submission considered in Burgess, at [88]: see also the extracts of that submission at [31] per Kerr J.

85    Turning to the reasons for decision given by the Minister, he correctly noted, at [4], that s 501(3) enabled him, without natural justice, to cancel a visa that had been granted to a person. He noted, at [9], that he could instead have elected to consider the applicant’s visa cancellation under s 501(2) with natural justice and that under that provision the person was provided with a Notice of Intention to Consider Cancellation and given 28 days in which to respond to the notice. Under that process, the Minister said, the person is afforded an opportunity to provide the Department with information pertaining to their circumstances and to respond to any adverse information, before a decision is made.

86    The statement of reasons correctly summarised the effect of s 501(5).

87    At [10], the Minister said: “However, I decided to proceed to make a decision in Mr CHAMOUN’s case under s501(3), without natural justice.” At [82], the Minister said: “I conclude that the information before me raises concerns that are of such a serious nature that the use of my discretionary power to cancel Mr CHAMOUN’s Class BF Transitional (Permanent) visa, without prior notice, is in the national interest.”

88    Subject to the “admission” point, I do not consider that the Minister proceeded on the basis that he could not seek further information from the applicant. I do not accept the applicant’s submissions that because the Minister did not seek further submissions from the applicant in relation to the NSW Police report or the question of whether the applicant was stateless, that shows that the Minister misunderstood that if he proceeded under s 501(3) he could not make further enquiries of the applicant if he chose to do so.

89    Further, the Department’s submission stated, after stating that the Minister may decide to undertake a consideration of cancellation under s 501(3) and that under this provision he may cancel a visa if the relevant conditions are met, that “[t]he person is not given notice of the cancellation consideration and is therefore not afforded any opportunity to provide the Department with information pertaining to their circumstances or to respond to any adverse information, before a decision is made”. However, I am not persuaded that that sentence states, nor would I infer that it was in fact read and understood by the Minister as stating, a proposition regarding the necessary legal consequences (as opposed to a proposition about general departmental practice) flowing from the Minister proceeding under s 501(3): cf Burgess at [33]ff per Kerr J, who dissented in the result and on this point. The sentence does not state that the Minister is prohibited from seeking further information from the applicant, if the Minister so desires. The reasons of the Minister do not contain the sentence.

90    Turning to the “admission” issue, the Minister submitted that the so-called admission was a submission based on what was apprehended to be the consequence of Ibrahim. It was not then perceived that there might be a ground for distinguishing Ibrahim, which was in fact upheld by the majority in Burgess, he submitted. The so-called admission was not a formal admission of fact: it was not a notice of admission, a deemed admission or even an admission in a pleading of a question of fact. It was not a piece of evidence which was suggestive of the Minister’s state of mind, such as an annotation to a set of submissions written to the Minister in the Minister’s hand, a notation which could be relied on as a piece of evidence. It was simply a legal submission, the Minister submitted, which was seen as no longer correct in light of the decision Burgess, handed down after the date of those written submissions.

91    The applicant submitted that, contrary to the Minister’s submission on this point, there was no legal content to the admission: it was simply a statement as to a fact, being the Minister’s state of mind at the relevant time. The applicant submitted it was an admission made by counsel for the Minister on a matter that the Minister was uniquely in a position to make an admission about. The applicant submitted that the decision in Burgess could not be binding as to whether the Minister in the present case had the state of mind or not.

92    In my opinion, the effect of s 87(1)(a) of the Evidence Act is to make the representation admissible since it is reasonably open to find that when the representation was made counsel had authority to make statements on behalf of the Minister in relation to the matter with respect to which the representation was made. The Court is to admit the representation for the purpose of determining whether a previous representation is also taken to be an admission by a party. I find that evidence of the admission was admissible and I find that the admission was made: see Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [35640]. Nevertheless, contrary to what I understood to be the submissions on behalf of the applicant, this does not mean that the Court should look only at the admission: the Court must also look at the terms of the admission, the circumstances in which it was made and the other material from which the Court would, in the usual case, draw inferences. On judicial review of an administrative decision where the state of mind of the decision-maker is in issue and where reasons are given, generally speaking that other material is the decision, the reasons and the material before the decision-maker.

93    Although, therefore, I find the admission is admissible, it does not mean that I should not consider the terms of the Minister’s reasons. I also take into account that the admission was made in light of the decision in Ibrahim and before the decision in Burgess.

94    I find that the admission was an admission of fact, the fact being the Minister’s state of mind as to his power under s 501(3), but taking all the circumstances into account I am not persuaded that the Minister’s reasons and the Department’s submission to the Minister show that, as a matter of fact, he misunderstood his power so that he could not, although he might not be obliged to, seek further material from the applicant.

95    Although unnecessary to my conclusion, I do not accept the Minister’s submission that any error would be immaterial: see Nguyen at [45]-[51].

96    This ground fails.

Ground 2 – claimed statelessness

97    The claim here is one of “no evidence”, a technical term in judicial review. The essential starting point, in my opinion, is to identify the finding in respect of which it is claimed that there is “no evidence”. Only then is it possible to see whether or not the finding is one of fact, whether there is no evidence (in the sense of material before the decision maker) for that finding and to assess the significance, if any, of that finding to establish jurisdictional error, having regard to the Full Court’s decision in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63]-[64], considering earlier Full Court decisions in Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423. In my opinion, Hands, with which I respectfully agree, establishes that a finding made with no evidence will only amount to jurisdictional error where the finding is a critical step in the ultimate conclusion of the decision-maker.

98    In my opinion, this ground fails on its facts.

99    I have set out at [18] above the relevant parts of the Minister’s reasons, which were recorded under the Minister’s heading “Claim of Statelessness”.

100    The Minister’s conclusion, at [115], was that the applicant was not stateless. In my opinion, that is the relevant finding. Contrary to the tenor of some of the applicant’s submissions I would not attribute to that finding any particular degree of certainty which must itself be assessed against the material before the Minister.

101    The material before the Minister included a statement in a letter from the applicant’s then lawyer to the Department, dated 4 May 2017, that the applicant was a citizen of Lebanon by birth. The Minister took into account that the lawyer contacted the Department on 6 September 2017 to the effect that the applicant “instructs that he is stateless” and that “he is unable to obtain citizenship from his country of birth”. The Minister evaluated this later material by observing “although no detail was provided”. The Minister also took into account the applicant’s 4 May 2017 statutory declaration, in which he stated “I don’t have Lebanese citizenship, I don’t have any Citizenship at all”, evaluating it by saying that the applicant did not outline the circumstances through which he claimed to be stateless, nor the discrepancy in the information he had provided to the Department about the birthplace of his parents, at one point saying they were born in Lebanon and at another point saying they were Assyrians who were born in Syria. The Minister also noted that elsewhere in the papers the applicant’s representative did not claim that the applicant was stateless. Contrary to the submission on behalf of the applicant, this does not establish “no evidence”, as it was open to the Minister to evaluate that material.

102    In light of this material, the Minister considered that the applicant would be eligible to apply for citizenship of the birth country of his father, that being Lebanon or Syria. He based this on information that citizenship of those countries was predominately based on paternal jus sanguinis or right of blood.

103    Counsel for the applicant submitted that if the Minister had found no more than that there was a possibility of the applicant being stateless, this ground could not have been sustained as, it was put, plainly there was a possibility of him being stateless. Put differently, counsel for the applicant accepted that his proposition was that there was no evidence that the applicant was certainly not stateless, referring to Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132.

104    In my opinion, Splendido was quite a different case, concerning, as it did, fact-finding in probabilistic terms about Mr Splendido’s future conduct. It concerned whether there was no evidence that there existed a likelihood that Mr Splendido would re-offend and, accordingly, that he represented an unacceptable risk of harm to the Australian community.

105    Justice Mortimer concluded, at [49], that in the circumstances of that appeal, the Assistant Minister engaged in nothing more than guesswork or speculation about Mr Splendido’s future conduct, in finding that it was probable that he would re-offend in a serious way if he were permitted to remain in Australia. This was central to the Assistant Minister’s reasoning process. Justice Moshinsky agreed with Mortimer J, at [113]. Justice Wheelahan concluded, at [132], that the combination of matters that were before the Assistant Minister did not provide a rational, probative foundation for a conclusion that there was a probability that the respondent would re-offend in the way contemplated by the Assistant Minister’s reasons. That conclusion was central to the Assistant Minister’s decision that there was not another reason why the cancellation of the respondent’s visa should be revoked, and the absence of a rational, probative basis for that evaluative conclusion was a jurisdictional error.

106    In the present case there was a basis, including a reasonable inference, for the finding that the applicant was not stateless. The inference was reasonably open that the applicant’s father, having been born in either Lebanon or Syria, obtained citizenship of that country, whether through a familial connection to that country or otherwise, with the consequence that the applicant would be eligible to apply for Lebanese or Syrian citizenship. There was no evidence before me of either Lebanese or Syrian law. The finding that the applicant would be eligible to apply for Lebanese or Syrian citizenship also provided a basis for the further finding by way of the Minister’s conclusion in [115], which I understood to be separately impugned by the applicant, that the applicant was not without a country of nationality that was bound to receive him. Speculation in this Court about whether the outcome of any application for citizenship may be affected by the applicant having been deported from Australia is not to the point; that was a matter for the Minister to consider and evaluate, and does not mean there was no basis for the finding.

107    I also reject the submission on behalf of the applicant (put in oral submissions) that, if this was not a no evidence ground, the finding that the applicant was not stateless was irrational or unreasonable in the sense that the material was incapable of supporting rationally the finding that was ultimately made.

108    Further, whichever way the point is put, I am also not persuaded that the finding is a critical step in the ultimate conclusion of the decision-maker.

109    It is not necessary separately to consider the point put on behalf of the Minister that the “no evidence” ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached: see L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34], cited by Jessup J in D’Rozario at [65].

110    This ground fails.

Ground 3 – claimed failure to actively engage with the NSW Police report

111    The legal basis of this claim was the decision of the Full Court in Carrascalao. That decision, in my opinion, does not support the applicant’s contention.

112    Carrascalao was a case where, in the particular circumstances, it was held that the Minister had failed in his legal obligation, which was accepted, to give proper, genuine and realistic consideration to the merits of the case in determining whether or not to cancel a visa under s 501(3). The Full Court approached the matter by asking whether the applicants had established that the Minister did not engage in an active intellectual process in determining whether or not to exercise his power under s 501(3): see at [35], [46]-[47]. At [60], the Full Court said that the Minister needed to exercise this power “with appropriate care and attention, including by engaging in an active intellectual process in reviewing relevant materials placed before him to assist in the discharge of this significant statutory function.”

113    In my opinion, it does not necessarily follow that jurisdictional error would be established if it could be shown that the Minister had not engaged in an active intellectual process in reviewing a particular part of the materials placed before him. Much will depend on the particular part in question.

114    Be that as it may, there is nothing in the material before me which establishes that the Minister did not engage in an active intellectual process in reviewing the NSW Police report.

115    As I have already set out at [18] above, having considered the NSW Police report at [38]-[50], at [51] the Minister made a specific finding that the information provided by the New South Wales Police was detailed and credible, and supported by third party records. The report was accompanied by search warrants, casino records, records of vehicle purchases, and tax and Centrelink records.

116    It is not to the present point for the applicant to contend that there was no corroborative material provided, a proposition I reject, or that there was no basis for a number of the allegations identified in the report, a proposition I also reject, or that a number of allegations in the report were inconsistent or misleading, which I do not accept. Neither is it to the point that the report did not expressly state that the author or the reviewer had personal knowledge of the allegations. These contentions go to the merits of the Minister’s decision, and to the correctness of the Minister’s evaluation of the material. None go to show that the Minister did not engage in an active intellectual process in reviewing this material.

117    I reject the submission that jurisdictional error is made out by the Minister accepting the NSW Police report or that a “lack of critical consideration” led to jurisdictional error in this respect.

118    This ground fails.

Ground 4 – claimed apprehended bias

119    There was no dispute between the parties as to the relevant principles. The applicant submitted that the “feared deviation from the course of deciding a case on its merits” arose from the Minister’s failure to consider that the allegations against the applicant may have been unfounded or inaccurate.

120    I see no basis for a claim of apprehended bias. The applicant has not established that a fair minded lay observer might reasonably apprehend that the Minister might have been so committed to a conclusion as to the exercise of his discretion that his mind was not open to persuasion.

121    In my view the submission to the Minister set out the matter of the applicant’s criminal associations, based on the NSW Police report, in a dispassionate manner, as follows:

26.    The Department of Home Affairs received an unclassified report from New South Wales Police, concerning Mr CHAMOUN. It is the submission of police that Mr CHAMOUN is a principal member of a highly organised criminal syndicate involved in importing and supplying large quantities of prohibited drugs to the community Attachment U.

27.    On 2 August 2014, Mr CHAMOUN was searched by members of the NSW Police Force Organised Crime Squad, Casino and Racing Investigation Unit. Police seized $19,870 in cash, two mobile phones and an encrypted Blackberry device which Mr CHAMOUN stated belonged to a friend. Police advise that the use of encrypted Blackberry devices is prevalent among members of highly organised crime syndicates, in an attempt to avoid police interception of communications Attachment U.

28. According to the police report, on 23 July 2016, New South Wales Police Force officers stopped and searched a male who arrived at [XX] Canberra Street St. Johns Park and located 10 kilograms of methylamphetamine. A Blackberry mobile phone hand set was thrown from the residence over a rear fence and an unspecified number of people left the house, including Mr CHAMOUN. Police executed a search warrant at the location and located $1.6 million in cash, secreted inside the roof cavity. As a result of further investigations, police attended another address linked to this syndicate where a further 77 kilograms of methylamphetamine was located Attachment U.

29.    Forensic testing of a number of items seized by police revealed Mr CHAMOUN’s fingerprints on two plastic bags in which the $1.6 million was contained. Also found were the fingerprints of Michael [XXX], identified by police as an associate of Mr CHAMOUN. It is the belief of police that Mr CHAMOUN’s fingerprints illustrate his involvement in this criminal syndicate. Police believe the seized money was to purchase prohibited drugs delivered to the premises Attachment U.

30.    On 25 November 2016, Mr CHAMOUN’s associate, Michael [XXX], was arrested by police after one kilogram of methylamphetamine was located in his vehicle, following his departure from a house in Fairfield West. Police searched the house and located a further 500 grams of methylamphetamine and two firearms Attachment U.

31.    The NSW Police Force has provided the Department with records pertaining to Mr CHAMOUN’s casino transactions, and those of his associate, Mr [XXX], as well as vehicles purchased by Mr CHAMOUN. These records indicate that Mr CHAMOUN had a total wager of over $100 million, between 25 May 2013 and 29 June 2014, prior to being excluded from The Star Casino, Sydney. Similarly, Mr CHAMOUN and Mr [XXX] made large cash deposits and withdrawals at Crown Casino, Melbourne, prior to Mr CHAMOUN’s exclusion from this venue. On two different dates in 2017, Mr CHAMOUN purchased a Mercedes Benz vehicle, paying substantial amounts in cash Attachment U.

32.    According to the NSW Police report, in 2017, checks conducted with the Australian Taxation Office (ATO) revealed that Mr CHAMOUN had never filed an income tax return. The New South Wales Police Force referred Mr CHAMOUN for an audit, due to his excessive cash dealings. In July 2017, Mr CHAMOUN filed an income tax return for years 2011 to 2016. He claimed his main income source was gambling, including in 2016 when his declared income was over $400,000. This is at variance with the records obtained by New South Wales Police Force, which show gambling losses. Police believe that Mr CHAMOUN’s income is from illegitimate sources, primarily the large scale sale of prohibited drugs Attachment U.

122    It was not suggested that that submission inaccurately reproduced the NSW Police report. The report was included in full in the material provided to the Minister.

123    Turning to the reasons of the Minister, I have set out at [18] above what the Minister said at [51] about this material. He said:

51.    I find the information provided by the New South Wales Police Force to be detailed and credible, and supported by third party records. Based on the NSW Police report and the supporting evidence, I am satisfied that Mr CHAMOUN has engaged in other serious conduct by his high level association with a criminal syndicate that is involved in the importation and supply of prohibited drugs for large profits.

124    The Departmental submission left the making of the decision to the Minister. Further, there is nothing to suggest that the Minister was aware of this material, so as to give rise to a predisposition on his part to cancel the applicant’s visa, before being given the submission, the draft reasons and the supporting material.

125    In my opinion it could not be said that there was a reasonable apprehension of bias. I reject the submission that the Minister was required in his decision-making to query whether or not the NSW Police report was inaccurate.

126    This ground fails.

Ground 5 – claimed legal unreasonableness

127    In my opinion, the integers of this ground have not been established.

128    First, the Minister’s use of the NSW Police report does not establish jurisdictional error for the reasons I have already given: those findings were not irrational or illogical.

129    Second, I do not accept the applicant’s contention that statelessness was irrelevant to the applicant’s citizenship submissions, if by “irrelevant” the applicant means that it was a legally prohibited consideration. Nor do I accept that the degree of relevance of the applicant’s claim of statelessness to his citizenship application was a matter required by the Minister to be taken into account as a possible explanation for inconsistencies in the material before him. That is merits review. What was said by or on behalf of the applicant in respect of the citizenship application remained material before the Minister. The material, including the applicant’s statutory declaration of 4 May 2017, was put before the Minister by the Department for the purposes of his decision under s 501(3). The applicant had, in support of his citizenship application, stated that he did not have Lebanese citizenship and that he did not have any citizenship at all. There was no legal error in the Minister taking this material, or any inconsistencies in the material, into account.

130    Third, I reject the applicant’s submission that it was legally unreasonable for the Minister to decide to proceed under s 501(3). No separate attack is made in these proceedings on the finding of the Minister that he was satisfied that the cancellation of the applicant’s visa was in the national interest: see s 501(3)(d). In that circumstance, I see no basis for the complaint of legal unreasonableness in this respect. The legislation gave the Minister a choice, and he considered that choice and the consequences of it. The exercise of that choice has not been shown to be outside the bounds of what the statute envisages so as to establish legal unreasonableness, whether by reference to the result or to the Minister’s reasons.

131    I have considered these claims of legal unreasonableness separately and cumulatively. In my opinion they fail.

132    Ground 5 fails.

The transfer decision

133    It will be recalled that the grounds of challenge to the transfer decision were: first, that the Minister and his officers lacked lawful authority because the power was limited to the purpose of taking a person out of the community and holding that person pending deportation; second, that to the extent the transfer was authorised by ss 189 and/or 196 of the Migration Act, the transfer decision was legally unreasonable; and, third, that the transfer decision was void for a failure to afford the applicant with natural justice.

134    The applicant did not challenge the decision to detain him in the first place in Villawood IDC. He did not contend that the detaining officer did not reasonably suspect that he did not hold a visa as a result of the cancellation decision and was therefore an unlawful non-citizen. The applicant is lawfully detained under s 189 and so must be kept in immigration detention until the occurrence of one of the events in s 196(1). A person who is a non-citizen in the migration zone who does not hold a visa that is in effect is not a lawful non-citizen and is therefore an unlawful non-citizen: see ss 13 and 14.

135    Counsel for the applicant accepted that the gateway to his action for trespass was the invalidity, for which he contended, of the transfer decision.

136    I do not accept the applicant’s submission that the Minister lacked the power to transfer the applicant in the present circumstances: there is ample authority that the Minister has that power. It is sufficient to refer to SBEG v Commonwealth of Australia [2012] FCAFC 189; 208 FCR 235 at 247 at [49] where Keane CJ, Lander and Siopis JJ quoted with approval what Ryan J said in VLAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1554 at [9]- [10]:

In my view the selection of a particular mode of detention is invalid only if it goes outside the definition of “immigration detention” in s 5 of the Act or if it is made for some ulterior purpose like the punishment of the non-citizen. ...

... [T]he 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.

137    I do not accept the applicant’s submission that the power to detain under ss 189 and 196 impliedly allows the transfer of a person only in so far as is reasonably necessary to effect such detention. I find that the power to transfer a person in detention is not limited to circumstances of imminent escape or a breach of discipline or order. In terms of the definition of “detain” in s 5, the effect of the transfer in the present case, which as I find below at [155] was a management decision that did not result in detention of a different nature or quality, was that the applicant was kept in detention, but in another place; it is not necessary in those circumstances to consider the aspect of that definition by which “taking such action … as [is] reasonably necessary to do so” is included in it.

138    I find that the decision-maker considered it was reasonably necessary to transfer the applicant. I am not however presently persuaded to accept the submission on behalf of the Minister that the power to transfer the applicant, if it were to be understood in terms of what is reasonably necessary to detain him or keep him in detention, rested solely on what the decision-maker considered to be reasonably necessary, although consistently with what I have concluded above I accept that the power is not limited to transfers which are reasonably necessary. Although not necessary to decide for present purposes, it may well be the case that what is reasonably necessary in this context falls to be decided by the Court by way of objective determination: see, in the context of a challenge to the validity of ss 189 and 196, Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 at [38]-[39], [42] per Gageler J; cf at [31]-[32] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ, who did not decide the issue.

139    In any event, if I am wrong in relation to the above, I also find that it was, considered objectively, reasonably necessary to transfer the applicant: on the material before me there was a significant risk to safety and security should the applicant be accommodated in the Villawood IDC. I do not accept the applicant’s submission that this risk could have been entirely mitigated by restricting the applicant’s visitors and that therefore it was a legal error not to have considered that course. For completeness, I should not be taken to accept that such a submission would, of itself, establish a lack of reasonable necessity in this context. It may be doubted whether the words “reasonably necessary”, even considered objectively, import a notion of proportionality whereby the availability of a less restrictive means, or an obvious and compelling alternative, will be determinative of the issue.

140    I follow the conclusion in Graham at [129]:

.… The Minister has a broad power to determine the place and mode of detention. The definition of “detain” in 5(1) of the Act, which refers to taking such action and using such force “as [is] reasonably necessary”, does not employ words of limitation: VLAH at [9] (Ryan J); SBEG v Commonwealth [2012] FCAFC 189; (2012) 208 FCR 235 at 247; [2012] FCAFC 189 at [49] (Keane CJ, Lander and Siopis JJ). While decisions as to the place of detention are not immune from judicial review, the broad nature of the power and the breadth of considerations that may be taken into account mean that it will be difficult to establish legal unreasonableness.

141    Turning to the (related) question of legal unreasonableness, I do not accept the applicant’s submission that the decision to transfer him lacked an intelligible justification. The Security Risk Assessment by the Commonwealth’s detention service provider rated the applicant as a “high risk”. I accept that the reasons for the transfer of the applicant were as set out in the placement minute dated 15 May 2019 to the effect that it was determined there was a significant risk to safety and security should the applicant be accommodated in the Villawood IDC and the placement at the Melbourne Immigration Transit Accommodation had been assessed as not appropriate. Placement for the applicant was recommended at the Yongah Hill IDC “taking into consideration Mr CHAMOUN’s known links to the organised crime networks…”.

142    I accept that, as at the time of the applicant’s transfer, the Yongah Hill IDC was operating at under its operational capacity, whereas the Villawood IDC was operating at over its operational capacity, and that a senior public servant said that the applicant’s likely associations through visits will pose a significant risk to safety and security.

143    I find that reliance on the NSW Police report in support of the transfer decision was not legally unreasonable. The applicant did not explain why that reliance was legally unreasonable in this context. The contention seemed to stand or fall on the same propositions, which I do not accept, that the applicant put in relation to the unreasonableness of the Minister relying on the NSW Police report.

144    I find that reliance by the decision-maker on other material in relation to the “Assyrian Organised Crime Network” was not legally unreasonable. The decision-maker was, in my opinion, entitled to rely on the contents of the placement minute dated 15 May 2019 to the effect that the applicant had associations with the Assyrian Organised Crime Networks or that he would likely associate with, amongst others, Assyrian Organised Crime Network members from the community through visits, which would pose a significant risk to safety and security should he be accommodated in the Villawood IDC.

145    Even if that conclusion were wrong and the applicant could challenge the fact-finding of the author of the minute dated 15 May 2019, he has not established a basis to challenge, on judicial review, those statements in that minute.

146    The author of that minute, Ms Reardon, affirmed an affidavit, annexing the minute. That affidavit was read in the proceedings and Ms Reardon was not cross-examined. It is true that in her affidavit she does not depose to or annex any material on which she relied in writing the minute, but I note that at the time she made that affidavit, 28 June 2019, the present basis of challenge to the transfer decision based on the Assyrian Organised Crime Network findings had not been pleaded in the then current amended originating application for review dated 14 June 2019. That basis was first pleaded in the applicant’s further amended originating application for review, a form of which was annexed to the applicant’s interlocutory application dated 8 July 2019.

147    Also, it is evident from the placement minute that Ms Reardon relied on other material to draft it. I find from the face of the placement minute that she had access to extensive records as to the applicant’s convictions and migration history. There is no reason to think that she did not have access to other relevant documents. The applicant did not seek, by way of discovery or notice to produce, to put before the court what material Ms Reardon relied on and did not otherwise seek to test the basis for her conclusions as to the applicant’s “associations with the Assyrian Organised Crime Networks operating in Southwest Sydney.”

148    In relation to the alleged failure to afford the applicant natural justice, it was common ground that the applicant was not given an opportunity to be heard before the transfer decision was made or put into effect.

149    I would follow the decision in Graham at [123] to the effect that a person who is properly detained under the Migration Act pursuant to s 189 may lawfully be moved to any place of immigration detention without attracting procedural fairness obligations.

150    Mr Graham sought judicial review of the decision to detain him at the Goulburn Correctional Centre and sought orders that he be detained instead at the Risdon Prison Complex in Tasmania. Mr Graham had first been taken into detention in Tasmania, and on the same day transported by aeroplane to New South Wales where he was held in the Goulburn Correctional Centre. Contrary to the applicant’s submission, I see no relevant distinction between asserting “an entitlement to be heard as to why he should be transferred from one detention facility to another of his choosing” and an entitlement to comment before a decision is made to transfer him.

151    At [109], Tracey J noted that the Minister’s decision in that case was not subject to procedural fairness requirements and that the detaining officer was, as a result of the Minister’s decision, under a statutory obligation to detain Mr Graham.

152    The review of authority by Tracey J showed that an obligation to afford procedural fairness to plaintiffs in detention had been found where the transfer order was not merely a prison management decision but was, for example, the transfer of the plaintiffs from juvenile detention centres to adult correctional centres, in circumstances where each youth 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 that course: see ID v Director General, Department of Juvenile Justice [2008] NSWSC 966; 73 NSWLR 158, discussed in Graham at [117].

153    At [121], Tracey J said that the earlier decisions demonstrated the reluctance of courts to require hearings before management decisions were made about the transfer of prisoners from one place of detention to another. His Honour said that similar principles applied to decisions, either actual or de facto, to maintain the status quo in respect to a particular detainee. His Honour said, at [122]-[123]:

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.

…

… 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.…

154    In Soh, Madgwick J concluded there was a duty to accord the applicant procedural fairness “in all the circumstances”: see at [97]. But those circumstances were very different to the present case, as there the applicant was being transferred from Villawood IDC to a New South Wales prison, first to Silverwater and also to the prison hospital in Long Bay gaol. I also note that it was held by Madgwick J that a denial of natural justice did not sound in damages or have the consequence that the applicant’s detention in a New South Wales prison was unlawful (at [2], [103]) although his Honour appears to have regarded this as flowing from his refusal to make a declaration to that effect on discretionary grounds: see at [101]-[103].

155    In my opinion, the transfer of the applicant to Yongah Hill IDC was a management decision within these principles. There was no evidence that the nature or quality of the applicant’s detention would be different in Yongah Hill IDC to Villawood IDC or of other special circumstances, such as obtained in ID. In my view the applicant’s “residual liberty”, being the separation or removal from him of the ability to have face-to-face contact with his children and his family did not have the consequence that he was entitled to an opportunity to be heard before the transfer decision was made or before it was put into effect. The identification of the applicant’s interests in those terms does not make them relevantly distinguishable from the interest “in maintaining his family relationships” which Mr Graham unsuccessfully claimed was sufficiently affected by the decision in that case to place and keep him at Goulburn so as to give rise to procedural fairness obligations: see Graham at [103].

156    For these reasons, the applicant’s challenge to the transfer decision fails.

157    If I were wrong in this conclusion, the appropriate relief would be to quash the transfer decision. No sufficient basis has been established for granting a permanent injunction prohibiting the Minister from further transferring the applicant away from Sydney while in detention, or damages in trespass.

Conclusion and orders

158    The application is dismissed, with costs.

Associate:

Dated:    20 September 2019