Can an Unlawful Non-citizen Object to Location of Detention?

Does a person who has been taken into immigration detention have any right to demand that he/she be held at a particular place of detention pending the resolution of a request that the cancellation of his or her visa be revoked?

For example, if a person has been living in Tasmania, does that person have a right to be held in detention in Tasmania, in order to be closer to the person’s family and legal representatives?

Or can the person be detained elsewhere?

This question was recently addressed by Justice Tracey in the case of Graham v Minister for Immigration and Border Protection (2018) FCA 1012 (6 July 2018).

The background of the case was that the visa holder, who had held various offices in the “Rebels Motorcycle Club”, had a lengthy criminal record in Australia, including various offences involving the possession of firearms, drug offences, assault and causing grievous bodily harm.

In 2011, the visa holder, a citizen of New Zealand who was present in Australia on a Subclass 444 Special Category visa, had received a warning in 2011 that further offending might result in the cancellation of his visa.  However, after he had acknowledged the warning, he committed further offences. 

The Minister then proceeded to cancel his visa on the basis that he did not pass the character test because he was a member of a group that was involved in criminal conduct, and that cancellation of his visa was in the national interest as it would contribute to the effort to disrupt the activities of outlaw motorcycle gangs.

The visa holder was then taken into immigration detention.

It was determined by the Department that he should be held in a “correctional facility” rather than in a conventional immigration detention centre on the basis that holding him in a conventional centre might exceed the “service provider’s” (the private company that manages immigration detention centres) ability to manage him, especially if the resolution of the process of removing him might be “protracted”.

The state government authorities in Tasmania, where the visa holder lived, had informed the Department that Tasmania would not agree to hold the visa holder in a correctional facility in that state.

So, upon being apprehended and taken into detention, the visa holder was transported from Tasmania to the Goulburn Correctional Facility in New South Wales.

He then brought proceedings seeking orders that he be held at the Risdon Prison Complex in Tasmania, so that he could be closer to his family while legal proceedings in the Federal courts relating to his request for revocation of the cancellation of his visa were pending.

It was the visa holder’s main argument that administrators of State prisons are under a duty to detain an unlawful non-citizen at the request of an officer of the Department, and that therefore the State of Tasmania had a duty to accept him into its prison system if requested to do so by the Department.

However, Justice Tracey concluded that Tasmania di did not have a duty to accept the visa holder into its prison system due to principles of “federalism” – namely, that the Commonwealth government could not impose an obligation on a State government to execute federal laws – and accordingly, the Commonwealth could not require Tasmania to take the visa holder into its correctional system if Tasmania was not willing to agree to do so.

The visa holder also made submissions that he had been denied procedural fairness as he had not been given the right to be heard concerning where he was to be held in immigration detention.

The Court rejected this argument. 

It concluded that a visa holder has no right to be held in any particular place of immigration detention, and that he had no right to procedural fairness in relation to determinations by the Department that he be held in a particular detention facility.

So, the import of this decision is that when a person is taken into immigration detention, the Department has very broad discretion to determine where that person will be held – even if the detention facility happens to be a great distance from the cancelled visa holder’s family and lawyers.

Right or wrong?