FEDERAL COURT OF AUSTRALIA Ghomrawi v Minister for Immigration & Multicultural Affairs [1999] FCA 1454 MIGRATION – applicant in immigration detention – whether detention unlawful – whether applicant an unlawful non-citizen at time taken into detention – whether government official refused to accept a valid application for substantive visa – whether refusal to accept valid visa application capable of leading to deemed grant of bridging visa ADMINISTRATIVE LAW – whether conditions of detention capable of rendering otherwise lawful detention unlawful – transfer of applicant from immigration detention centre to State correctional facility – whether failure to comply with departmental policy in making decision to transfer – whether relevant considerations not taken into account in making decision to transfer – whether irrelevant considerations taken into account in making decision to transfer – whether applicant not afforded procedural fairness with respect to the making of the decision - successive decisions not to transfer applicant back to immigration detention centre – whether decision-maker failed to bring open mind to each monthly review – whether irrelevant considerations taken into account Migration Act 1958 (Cth), s 13(1), s 14(1), s 189, s 196(1), s 48, s 73, s 67, s 45, s 46, s 47 Judiciary Act 1903 (Cth), s39B Migration Regulations 1994 (Cth), reg 2.12(1), Item 030.212(2) to Schedule 2, reg 2.07 Trengove v Repatriation Commission (1994) 122 ALR 271, referred to Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106, referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, cited Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98, applied HASSAN GHOMRAWI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N398 OF 1999 EMMETT J 22 OCTOBER 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 398 OF 1999 BETWEEN: HASSAN GHOMRAWI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: EMMETT J DATE OF ORDER: 22 OCTOBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. There be no order as to the costs of the proceedings in so far as they were concerned with the decision of the Immigration Review Tribunal of 8 April 1999. 3. The applicant pay the respondent's costs in respect of all other aspects of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 398 OF 1999 BETWEEN: HASSAN GHOMRAWI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: EMMETT J DATE: 22 OCTOBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Hassan Ghomrawi ("Mr Ghomrawi"), is presently in immigration detention, pursuant to section 189 of the Migration Act 1958 (Cth) ("the Act"). He has been in immigration detention since 9 July 1998 when he was arrested and lodged at the Villawood Detention Centre ("Villawood"). On 8 September 1998, he was transferred from Villawood to the Metropolitan Remand and Reception Centre at Silverwater ("Silverwater"). 2 Mr Ghomrawi claims that he was wrongfully detained in the first place or that his detention, even if originally lawful, has ceased to be lawful. He also seeks to impugn the decision made to transfer him from Villawood to Silverwater and successive decisions not to retransfer him back from Silverwater to Villawood. MR GHOMRAWI'S CONTENTIONS 3 The basis upon which Mr Ghomrawi was arrested on 9 July 1998 and placed in immigration detention is that he is an "unlawful non-citizen". Under section 13(1) of the Act, a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. Under section 14(1), a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Under section 189(1) of the Act, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. Under section 196(1), an unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia; (b) deported; or (c) granted a visa. For present purposes, the migration zone means Australia. 4 Mr Ghomrawi asserts that on 18 November 1996, he submitted to the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), a valid application for permanent residence, which included an application for a bridging visa pending determination of that application. Under Item 030.511(b) in Schedule 2 of the Regulations, a bridging visa that is granted pending determination of an application for a substantive visa remains in effect until the substantive visa is granted or, if the substantive visa application is refused, 28 days after notification of the decision. 5 Mr Ghomrawi contends that the Minister wrongfully refused to accept the application. He says that, notwithstanding that refusal, the Minister must be taken to have received a valid application for a bridging visa and that, since Mr Ghomrawi satisfied all of the prescribed criteria, the Minister had no discretion to refuse to grant the bridging visa. The Minister must, therefore, be taken to have done that which he was obliged to do, namely issue a bridging visa. Accordingly, Mr Ghomrawi should be treated for all purposes as though a bridging visa had been granted on 18 November 1996. 6 If Mr Ghomrawi is to be treated as being the holder of a bridging visa from 18 November 1995, he, so it is contended, would not have been an unlawful non-citizen as at 9 July 1998. If Mr Ghomrawi succeeds on that contention, it is common ground that he should be released from immigration detention because, in those circumstances, he would be a lawful non-citizen. 7 In the alternative, Mr Ghomrawi contends that the conditions of his detention at Villawood, and subsequently at Silverwater, rendered those detentions unlawful such that he should be released altogether from detention. The Minister accepted that, while the question of the lawfulness of detention could not be affected by the manner or conditions of detention, decisions relating to the manner and conditions of detention may be subject to review under section 39B of the Judiciary Act 1903 (Cth) but not under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act"). The manner and conditions of detention are matters of executive action which are not amenable to review under the AD(JR) Act, since there is no decision "made under an enactment". 8 Mr Ghomrawi also contends that the decision made on 8 September 1998 to move Mr Ghomrawi from Villawood to Silverwater was bad for the following reasons: · the procedures required to be observed by the Department, namely "MSI 157 of 1 July 1997", in transferring Mr Ghomrawi, were not observed; · Mr Ghomrawi was not accorded procedural fairness in relation to the decision; · the decision involved an improper exercise of power in that: (a) the decision took into account the irrelevant consideration that Mr Ghomrawi had inflicted harm upon himself; (b) the decision failed to take into account relevant considerations, namely, the medical and psychiatric condition of Mr Ghomrawi; (c) the decision was an exercise of power for the purpose of avoiding the possibility that Mr Ghomrawi may inflict harm upon himself, which was not a purpose for which the power was conferred. 9 In addition, Mr Ghomrawi contends that each decision made on the monthly review of Mr Ghomrawi's detention in Silverwater was bad for the following reasons: · The Department failed to conduct the monthly reviews of his behaviour fairly and properly so as to determine whether he was eligible for return to Villawood, in that no separate mind was addressed to that question. Rather, each successive decision-maker blindly followed the previous decision. · The applicant was not afforded procedural fairness in so far as he was not given the opportunity of being heard in relation to those matters, in circumstances where he had a legitimate expectation that he would be heard in relation to the matters. LAWFULNESS OF DETENTION ON 9 JULY 1998 Factual Circumstances 10 Mr Ghomrawi is a citizen of Lebanon. He last arrived in Australia on 31 October 1995 under a visitor visa issued in Syria for three months from 31 October 1995. That visa expired on 31 January 1996. It appears that he was involved in a motor vehicle accident prior to 31 January 1996. On that day, he applied for a medical treatment visa. On the same day, he was granted a bridging visa, pending the determination of the medical treatment visa application. 11 It appears that on 21 January 1996, Mr Ghomrawi was arrested and charged with kidnapping and aggravated sexual assault. The proceedings relating to those charges were not finalised until November 1997 when they were dismissed. 12 On 15 September 1996, Mr Ghomrawi married Kylie Mackie, an Australian citizen ("Mrs Ghomrawi"). In early November 1996, Mr Ghomrawi and Mrs Ghomrawi attended at the Bankstown office of the Department of Immigration and Multicultural Affairs ("the Department"). There, Mrs Ghomrawi told officers of the Department that they had married and that she wanted to keep Mr Ghomrawi in Australia with her. She was given forms to fill out. 13 Several forms are in evidence before me, which Mrs Ghomrawi said were the forms that were given to her on that occasion. The forms comprise the following: · Form 887 – Application to Remain Permanently in Australia; · Form 888 – Statutory Declaration by Supporting Witness in Respect of an Application to Remain Permanently in Australia on Spouse or Interdependency Grounds; · Form 80 – Personal Particulars for Character Assessment; · Form 26 – Medical Examination for an Australian Visa; · Form.60 – Radiological Report on Chest X-ray of an Applicant for Visa/Entry Permit to Australia. 14 The forms have been completed in varying degrees. Mrs Ghomrawi said that her husband cannot write any English and that she filled out the forms. The Form 887 provides for a nominator and contains declarations both by applicant and nominator. The form is completed in the name of Mr Ghomrawi as applicant and Mrs Ghomrawi as nominator. The declarations were completed by Mr Ghomrawi and Mrs Ghomrawi on 6 November 1996 at Lakemba before a justice of the peace, described in the form as "L. Tucker". 15 The Form 887 states that to apply to remain permanently in Australia an applicant must apply under one of the following classes: · General (Residence); · Family (Residence); · Change in Circumstances (Residence). The Form 887 in question is completed by specifying "General". The subclass of the "General (Residence) Class" identified is "Spouse". 16 The printed part of the Form 887 also contains the following: "This is also an application for a bridging A, C or E visa." It also contains the following: "This is also an application for an extended eligibility (temporary) visa." 17 Two Forms 888 were completed. The first is a declaration by Mounzer Khoder made before Leah Tucker at Lakemba on 6 November 1996. The second is a declaration by Lissa Anne Mackie, who is Mrs Ghomrawi's sister, made before Cheryl Maree Chalmers at Lakemba on 18 November 1996. That date has some significance for reasons that will appear below. 18 The Form 80 was signed by Mr Ghomrawi and bears the date 9 November 1996. The form requires details of arrival in Australia. It also calls for "visa details". The form has been completed by inserting reference to the visitors visa issued to Mr Ghomrawi in Syria. By the time of completion of the form, of course, that visa had expired. The bridging visa granted on 31 January 1996 was still in force but no reference was made to it in the Form 80. 19 The Form 26 has been completed with particulars of Mr Ghomrawi. However, it has not been signed by him. Part C, entitled "Examining Doctors Findings", has not been completed. Part D of the Form 26, entitled "Applicant to Complete" has been completed with the name and address of Mr Ghomrawi. That part contains the following question: "Has the application to which this medical examination is related, already been submitted to an Australian Government office?" That question has been answered "yes" and the space for the name and address of the office concerned has been completed by inserting "Bankstown". 20 The Form 160 has been completed with particulars of Mr Ghomrawi. However, the form has not been completed by any radiologist. Attached to the form is an envelope intended to contain x-ray film. The cover of the envelope has been completed with particulars of Mr Ghomrawi. The form then requires an indication as to whether the application to which the radiological examination is related has already been submitted to an Australian Government office and, if so, the file number. The form has been completed to indicate that an application has already been submitted to: Bankstown Immigration Raymond Street Bankstown The space for a file number is uncompleted. 21 Mrs Ghomrawi said that on 18 November 1996 she, together with Mr Ghomrawi and Ms Rhonda Jaber, went to the Bankstown office of the Department. She said that they took with them the forms that I have described. Mrs Ghomrawi said that she handed "the visa application" to Irene Capra, an officer of the Department. 22 Ms Capra is a counter supervisor at the Bankstown regional office of the Department. She has held that position since approximately 1992. Her position involves dealing with more complex cases, including more complex enquiries at the counter and more complex or difficult applications, supervising other counter staff and the training of staff. 23 The assertion that "the visa application" was handed to Ms Capra was made by Mrs Ghomrawi in an affidavit sworn on 17 June 1999. The affidavit was read, without objection, on 14 September 1999. In that affidavit, Mrs Ghomrawi said as follows: "4. On about 18 November 1996 my husband, Hassan, and a friend, Rhonda Jaber, went to the Bankstown office of the Department of Immigration for the purpose of lodging an application for a residence visa for my husband. 5. I handed the visa application to Irene Capra, an officer of the Department. She told me and my husband, if [sic] front of Rhonda Jaber, that she would not accept the visa application and handed it back to me. She said "I will not accept your husband's application until after his court case". I said to Ms Capra "that is unfair" and words to the effect that my husband had not been convicted of anything relating to the court case. I told Ms Capra "we do not know when Hassan's court case will be over" Ms Capra said to us "that's too bad". She then walked away." 24 When the affidavit was read on the first day of the hearing, I asked counsel for Mr Ghomrawi whether there would be evidence of the "visa application" referred to by Mrs Ghomrawi in her affidavit and was told that there would be and that it was a valid application. In the afternoon of the second day of the hearing, 15 September 1999, I indicated to counsel for Mr Ghomrawi that I was troubled by the absence of the "visa application" referred to by Mrs Ghomrawi. At that stage, counsel for Mr Ghomrawi said that the "physical document" was not available and that he had "done everything humanly possible to get hold of this particular document". 25 At the end of the second day's hearing, I adjourned the proceedings to 22 September 1999 for the completion of the evidence. Further cross-examination of Mr Ghomrawi took place on that day. After the evidence was completed, there was further discussion with counsel concerning the admissibility of a file note made by Ms Capra of a meeting she had with Mr Ghomrawi on 15 August 1997. More will be said about that document in due course. The file note was objected to by counsel for Mr Ghomrawi and the tender of it was not pressed at that stage. 26 In the course of the discussion with counsel on 22 September 1999, I indicated that I wished to complete the hearing of a matter on Tuesday, 28 September 1999. I also indicated that one difficulty that I had with Mr Ghomrawi's case was that, on the evidence before me, I had no idea what sort of visa it was alleged that Mr Ghomrawi was seeking in November 1996. That comment was apparently heard by Mrs Ghomrawi, who then drew her legal adviser's attention to documents that her solicitor had apparently had in his possession since May 1999. An application was subsequently made to reopen Mr Ghomrawi's case, in order to tender further evidence. 27 In support of his application Mr Ghomrawi relied on an affidavit sworn by his solicitor, Mr Alexander Lee. Mr Lee said that, in about May 1999, Mrs Ghomrawi delivered to him a significant number of documents, which included the documents I have described. Mr Lee said that he did not, at that time, notice the documents in question. 28 A further affidavit by Mrs Ghomrawi was also read in which she said the following: "3. During the first week of November 1996 I visited the Bankstown office of the Department of Immigration to obtain the necessary forms for my husband to apply for permanent residence based on our marriage. I was given Form 887 and other forms. 4. I helped my husband fill out these forms. The forms are those exhibited as "AL-1" of the Third Affidavit of Alex. Lee, Solicitor, sworn 23 September 1999. 5. My husband and I attended a Justice of the Peace in Lakemba on 6 November 1996 where we swore Statutory Declarations contained in Form 887, one of the documents described above. 6. My husband and I accompanied Mounzer Khoder to a Justice of the Peace in Lakemba on 6 November 1999 [sic] where he swore a Statutory Declaration contained in Form 888, one of the documents described above. 7. My husband and I accompanied my sister Lissa Mackie to a Justice of the Peace in Lakemba on 18 November 1996 where she swore a Statutory Declaration contained in form 888, one of the documents described above. 8. Later on 18 November 1996, I accompanied my husband and a friend, Rhonda Jaber, to the Bankstown office of the Department of Immigration for the purpose of submitting the above described application and supporting documents to the Department of Immigration so that my husband could obtain permanent residence based on his marriage to me. 9. On 18 November 1996 I handed the above application (Form 887) and related documents to Ms Irene Capra, an officer of the Department of Immigration. Ms Capra refused to accept and process that application. I am describing the forms contained in "AL-1" of the Third Affidavit of Alex. Lee, Solicitor, sworn 23 September 1999. 10. I kept the original application forms and gave them, together with numerous other documents, to Mr Alex. Lee, Solicitor, in May 1999." There was no objection to any part of that affidavit. The documents referred to as "AL1" are the documents I have already described. 29 On the basis of the evidence I have just described, I granted leave to Mr Ghomrawi to reopen his case. The documents in question were than tendered without objection. The affidavits I have just referred to were also read as evidence in the proceedings. 30 Ms Jaber also swore an affidavit, intended to corroborate the evidence of Mrs Ghomrawi. Her affidavit relevantly provided as follows: "2. On about 18 November 1996 I accompanied Hassan and Kylie Ghomrawi to the Bankstown office of the Department of Immigration. Hassan and Kylie had recently married and they told me that they wanted to lodge a visa application so that Hassan could stay in Australia with Kylie. I told them that I would go with them to the Department. 3. Once inside the building we went up to a desk/counter and Kylie and Hassan spoke to a female officer who I know to be Ms Irene Capra. Kylie handed the visa application to Ms Capra. I was standing right next to Kylie and Hassan and overheard everything that was said between Kylie, Hassan and Ms Capra. After a short time, Ms Capra said to Kylie and Hassan "I am not going to accept Mr Ghomrawi's visa application. He has court cases pending and we will not process any visa application until after the court cases are over". Kylie or Hassan (I am not sure which one) then said "that's unfair", we don't know when the court cases will be over". Ms Capra said "too bad, I said I will not accept the [sic] any visa application until after the court case is over". Ms Capra then walked away." 31 When asked in cross-examination how she knew that the incident deposed to occurred on 18 November 1996, Ms Jaber said "Kylie's sister, Lissa, had to go do a character witness at a JP, she had to sign it on that date". Asked how she knew Mrs Ghomrawi's sister went to see a JP on 18 November 1996, Ms Jaber said: "I distinctly remember that date for the simple reason is, I had a personal matter that's got nothing to do with this a couple of days before and she told me that she had to go do a JP – to a JP because I needed to go to one and she said that she was going to do one and she had to do a character witness for someone." 32 Mr Ghomrawi also swore an affidavit intended to corroborate his wife's evidence. However, in the course of cross-examination, it became apparent that Mr Ghomrawi had insufficient understanding of the English language to be able to corroborate what was said in the course of any discussion that might have occurred on 18 November 1996. He said that he did recall going to the Bankstown office of the Department with his wife and Rhonda Jaber two months after his marriage on 15 September 1996. He identified Ms Capra as the person to whom his wife spoke. While Mr Ghomrawi's evidence corroborates that a visit occurred on 18 November 1996, his evidence does not corroborate the terms of any discussion. 33 Ms Capra denied the assertions made in Mrs Ghomrawi's first affidavit. However, she acknowledged that, in November 1996, she was aware of the criminal charges against Mr Ghomrawi. Ms Capra said that she was aware of Mr Ghomrawi's application for a medical treatment visa in early 1996 because she was consulted by the Department's officer then having conduct of the file relating to that application. In the course of that consultation, she was informed that Mr Ghomrawi had "outstanding criminal matters". 34 Ms Capra acknowledged, in the course of cross-examination, that she does not have a recollection of the particular day of 18 November 1996. She said that she did not know Mr Ghomrawi directly, but that an officer had "more or less" pointed him out to her, advising her that he had some criminal matters that were outstanding. She said, however, that she had no contact with him personally before 1997. Her knowledge before then was limited to knowledge that he had lodged an application for a medical treatment visa and that there were criminal matters concerning him that were outstanding. 35 When asked whether she had a conversation as deposed to by Mrs Ghomrawi, Ms Capra said that she did not recollect the conversation. She said that it was unlikely that she may have had such a conversation. She said that she did not recall having the conversation or reacting in the way alleged by Mrs Ghomrawi, by refusing to take a visa application. She said: "Why would I do that?… If a person wants to lodge an application they are welcome to do that. I wouldn't refuse. I mean, its their money, if they want to lodge an application, so you know, the specific information, the specific statement that was in that affidavit." Ms Capra acknowledged that it would be improper for her not to have accepted an application from Mr and Mrs Ghomrawi. 36 Ms Capra also confirmed that, from early 1996, she was aware of the nature of the criminal charges against Mr Ghomrawi as being in relation to "a rape case" and that "there was a young woman involved". She believed that they were serious charges. However, she denied that she had formulated a view about Mr Ghomrawi based on her knowledge of those charges. On the other hand, she said that the counter officer who was dealing with the case seemed to have made a judgment about the matter. She went on to say: "When some people find out about these things, they just tend to make a judgment about these things. You know, that it is serious and you know, gee, you know, we have got someone that is actually – well not that we have got someone. That a person has applied for a visa and there are some criminal matters that need to be looked at because it is also based on our decision about approving a visa." 37 Ms Capra said that she first became directly involved with Mr Ghomrawi's medical treatment visa application in January 1997. The involvement arose because the application had not been resolved and she decided, as supervisor, to assume responsibility for making the decision concerning the medical treatment visa. She wrote to Mr Ghomrawi on 23 January 1997 asking him to contact her within 7 days to arrange an interview appointment. In her letter, Ms Capra described herself as follows: I CAPRA Client Services Section Bankstown 38 Ms Capra interviewed Mr Ghomrawi on 3 February 1997. She also spoke to Mrs Ghomrawi on 24 February 1997. She made notes of both the interview and the telephone conversation. The note of the interview on 3 February 1997 contains the following: "What are your future intentions? When I married I wanted to apply for residence but was told that visitor visa application must be determined. I asked many times about this." 39 The note of the telephone discussion with Mrs Ghomrawi on 24 February 1997 contains the following: "Mrs Ghomrawi also informed me that she wants her husband to stay and that she loves him. I explained that I was not making a decision about his permanent residence in Australia but I would be making a decision about his visitor visa only. Depending on the outcome of this decision Mr and Mrs Ghomrawi would then be able to make a decision about how to apply for permanent residence." 40 On 27 May 1997, Ms Capra wrote to Mr Ghomrawi informing him that, on that day, a decision had been taken to refuse to grant him the medical treatment visa for which he had applied on 31 January 1996. In the letter of 27 May 1997, Ms Capra described herself as follows: I CAPRA Position No. 10915 for Client Services Section South-Western Region 41 Reasons attached to the letter indicated that Mr Ghomrawi was unable to satisfy certain of the relevant criteria for the grant of the visa. The reasons recorded that, in the application, Mr Ghomrawi had stated that he wished to remain until 31 May 1996 but that he had remained in Australia close to 12 months beyond that date and that, during his continued period of stay, he had failed to seek further referrals in respect of his alleged medical complaint. The reasons recorded that the decision-maker found that Mr Ghomrawi had not presented any evidence of exceptional circumstances that required him to remain in Australia. 42 The file note of 15 August 1997, to which I have already referred, records an interview between Ms Capra and Mr Ghomrawi on 11 August 1997 when Mr Ghomrawi "approached office… with friend Natalie". The file note went on to say: "I advised the abovenamed that his application was refused and a letter of refusal was sent to his forwarding address on 27/5/97. The letter was returned to the Dept on 2/7/97 'unclaimed'. I handed the abovenamed the letter of refusal and I explained to the abovenamed that he was unlawfully in Australia and the bridging visa and review rights had ceased on 29 June 1997. The abovenamed claimed that letters had been stolen from his mail box and therefore he did not receive the letter. I advised the abovenamed that the letter was sent by registered mail and as he was unlawfully in Australia he could not apply for a review of the decision therefore he must depart A/A. The abovenamed argued with me and said that he wants to stay in A/A because he is married and his wife had a miscarriage. I explained to the abovenamed that a decision was made in relation to a medical treatment visa and not in relation to his marital status. The abovenamed told me he had a court hearing this Friday and I advised him that he should apply for a criminal justice visa…. The lodgement of a sponsorship application was explained to the abovenamed." 43 This proceeding was originally commenced as an application for review of a decision of the Immigration Review Tribunal confirming a decision of the Minister to refuse a bridging visa, pending determination of an application for a protection visa - see [1999] FCA 1216. The complaint concerning the alleged occurrence of 18 November 1996 was not made until well after this proceeding was commenced, when an outline of facts and contentions was filed on behalf of Mr Ghomrawi. Perhaps no great significance should be attached to that circumstance. It may be that the legal significance of the alleged occurrence was not apparent to Mr Ghomrawi until he received further legal advice after the proceedings commenced. 44 Mr Ghomrawi, in his discussion with Ms Capra on 3 February 1997, indicated that he wanted to apply for a Residence Visa following his marriage. The existence of the documents that I have described, being the completed application Form 887 and ancillary documents, corroborates that steps were taken on behalf of Mr Ghomrawi in November 1996 to make such an application. 45 In the course of cross-examination, Mrs Ghomrawi was asked how she knew that it was a woman called Irene Capra to whom she had spoken on 18 November 1996. She said that, when she went to reception, she asked the receptionist "Could I talk to Irene Capra". She said that she asked to talk to Irene Capra "Because she was Hassan's compliance officer". 46 The term "compliance officer" is used to describe officers of the Department whose duty is to ensure that non-citizens abide by their visa conditions and to detain unlawful non-citizens. They are also authorised to grant a bridging visa E, which authorises an unlawful non-citizen to be lawfully within Australia until departure. If a person is found to be working contrary to visa conditions, a compliance officer will detain that person. Compliance officers do not deal with people who have a lawful status. 47 Ms Capra was not, and never described herself as, a compliance officer. There is no evidence to suggest that, as at November 1996, either Mr Ghomrawi or Mrs Ghomrawi had ever had dealings with Ms Capra. I accept her evidence that she had no direct involvement with Mr Ghomrawi's file prior to early 1997. 48 Further, I am unable to discern any motivation or reason on the part of Ms Capra for refusing to accept any valid application that might have been lodged by or on behalf of Mr Ghomrawi. It was suggested on behalf of Mr Ghomrawi that the motivation might be that, at least subconsciously, Ms Capra had formed an adverse view concerning Mr Ghomrawi by reason of the criminal charges against him and that that led her to refuse to accept the application. I accept Ms Capra's denial of such an attitude. 49 Ms Capra was, in some senses, an unsatisfactory witness. She acknowledged that her affidavit contained language that was not entirely her own. Her oral evidence tended to be a little disjointed and confused. However, I formed the opinion that she was endeavouring to give honest answers when in the witness box. She probably felt defensive in that the allegations that have been made concerning her involve impropriety, as she understood it. I consider that it is more likely than not that, if Ms Capra had engaged in the exchange deposed to by Mrs Ghomrawi, she would have remembered it. Her evidence that she has no recollection of such an exchange amounts, in effect, to a denial of the exchange alleged by Mrs Ghomrawi. I accept that denial. 50 I accept that Mr Ghomrawi, his wife and Ms Jaber went to the Bankstown office of the Department, probably on 18 November 1996, and that some discussion then occurred. It may be that the discussion was with Ms Capra. However, I consider that it is unlikely that Mrs Ghomrawi asked for Ms Capra when they arrived at the office. I do not accept that Mrs Ghomrawi would have known of the name of Ms Capra in November 1996. While Mrs Ghomrawi may have had a discussion of some sort with Ms Capra in November 1996, I do not accept that she asked to speak to Ms Capra as Mr Ghomrawi's compliance officer. 51 It is clear that Mr Ghomrawi was intending to apply for permanent residence in consequence of his marriage to Mrs Ghomrawi. For some reason, that application was not prosecuted. It is unlikely that the communications recorded in Ms Capra's 1997 file notes would have occurred in that form if, in November of the previous year, there had been a refusal to accept an application which Mrs Ghomrawi regarded as "unfair". I reject the contention that the reason for non-prosecution of the application for a Residence Visa was that Ms Capra refused to accept an application on 18 November 1996. 52 It is likely that some advice was given to Mr Ghomrawi and Mrs Ghomrawi on 18 November 1996 that indicated to them that any application for a permanent Residence Visa should be deferred. However, whether the advice was to wait until the disposition of the medical treatment visa or until the disposition of the criminal charges is not clear. In the light of Ms Capra's file notes, I consider it more likely that reference was made to the disposition of the medical treatment visa. 53 Section 48 of the Act relevantly provides as follows: "A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) … after last entering Australia, was refused a visa… may… apply for a visa of the class prescribed for the purposes of this section, but not for a visa of any other class" 54 Under regulation 2.12(1) several classes of visas are described for the purposes of section 48. One of the classes included is: "Change in Circumstances (Residence) (Class AG)" Under item 1107 in Part 1 of Schedule 1 to the Regulations, Form 887 is the prescribed form for such an application. 55 Form 887 is also the prescribed form for a "General (Residence) Class" visa and for a "Family (Residence) Class" visa under items 1119 and 1115 respectively of Part 1 of Schedule 1, relating to classes AS and AO respectively. Neither of those classes is prescribed for the purposes of section 48. Thus, while it would have been possible for Mr Ghomrawi to apply for a Class AS visa prior to 27 May 1997 (when the application for a medical treatment visa was refused), section 48 would have precluded him from applying for such a visa after that time. In those circumstances, Ms Capra's comment that, depending on the outcome of the decision concerning the medical treatment visa, Mr and Mrs Ghomrawi would be able to make a decision about how to apply for permanent residence, is curious. However, that does not appear to bear on the questions presently before me. 56 In the light of the conclusion I have reached concerning the events of 18 November 1996, Mr Ghomrawi's contention, that he should be treated as a lawful non-citizen as at 9 July 1998 by reason of Ms Capra's refusal to accept a valid application for a bridging visa, must fail. Valid Application 57 It is clear that no valid application was, in fact, lodged. There is a real question as to whether the documents, even if lodged and accepted, would have constituted a valid application. The procedures for making applications may be summarised as follows: · Under section 45(1), a non-citizen must apply for a visa of a particular class. · Under section 45(2), the Regulations may prescribe the way for making an application for a visa of a specified class. · Under section 46(1), an application for a visa is valid only if any fees payable in respect of the Regulations have been paid and the application is made in the way required by section 45(2). · Under section 47(3), the Minister is not to consider an application that is not a valid application. 58 As I have said, the documents that are alleged to have been taken to the Bankstown office of the Department included the Forms 26 and 60, neither of which were completed. The fact that the Forms 26 and 60 had been filled out to say that the application to which they relate had already been lodged at the Bankstown office tends to corroborate Mr Ghomrawi's contention that he, his wife and Ms Jaber were intending to submit the Form 887 prior to submitting completed Forms 26 and 60. 59 However, while the requirement for such documents was not the subject of any submissions, it is arguable that the absence of completed Forms 26 and 60 would, without more, have the consequence that no valid application was lodged. Under regulation 2.07, an applicant must complete an approved form in accordance with any directions on it. Form 887 draws attention to explanatory notes Form 887N, which accompanies the Form 887. The end of that document provides as follows: "Ensure that you have provided all the documents listed in the Explanatory Notes to support your application. List below any information which you have not been able to give and state when you expect to be able to give it." No details were provided by Mr Ghomrawi in that section. 60 Under Item 801 in the second schedule to the Regulations, Mr Ghomrawi must satisfy certain "Public Interest Criteria" set out in Schedule 4 to the Regulations. Those criteria relate to the health of the applicant. It may be that an inference should be drawn that the form required that Mr Ghomrawi provide evidence of meeting those health requirements and that the Forms 26 and 60 should be completed satisfactorily by appropriately qualified persons. As I have said, they were not completed at all. 61 Regulation 2.07 deals with the lodging of applications. It provides as follows: " (1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1; (a) the approved form (if any) to be completed by an applicant (b) the visa application charge (if any) payable in relation to an application (c) other matters relating to the application. (3) An applicant must complete an approved form in accordance with any directions on it." Item 1119 in Schedule 1 to the Regulations deals with class AS, General (Residence) visas. 62 There is no evidence that any fee payable in respect of the General (Residence) visa was paid or tendered. Mrs Ghomrawi gave evidence that she had paid a fee in respect of the earlier medical treatment visa application. Mr Ghomrawi contends that an inference should be drawn that, since Mrs Ghomrawi was aware that fees would be payable in respect of a substantive application, when they went to the Bankstown office of the Department in November 1997, they had with them sufficient money to pay the fee that was payable and would have paid it but for the conduct of Ms Capra. In the light of the findings I have made, I am not prepared to draw that inference. 63 Accordingly, I am not satisfied that, even if Mrs Ghomrawi's version of the events of November 1996 were accepted, a valid application within the meaning of section 46 was tendered to Ms Capra. 64 The real answer to Mr Ghomrawi's contentions, however, is the mandatory language of the provisions to which I have referred above. For whatever reason, no valid application was in fact lodged. Even if Ms Capra refused to accept a valid application, it is uncontested that the documents in question were taken away from the Bankstown office by Mr and Mrs Ghomrawi. 65 Mr Ghomrawi sought to overcome that factual difficulty by reliance upon the principle of estoppel. It was said that, by her conduct, Ms Capra represented to Mr Ghomrawi on behalf of the Minister that his application could not be dealt with until after his criminal charges had been disposed of. In reliance upon that representation, Mr and Mrs Ghomrawi went away and did not press for the application for a substantive visa and for a bridging visa to be processed. It was said that Mr Ghomrawi was thereby induced to act to his detriment in reliance upon the Minister's representation and that the Minister, in all conscience, should be estopped from denying the truth of the representation. It was said that had the representation not been made, Mr Ghomrawi would have insisted upon his application being received by the Department and, for the reasons outlined, a bridging visa would have been granted. Mr Ghomrawi would then have been a lawful non-citizen. 66 One difficulty for Mr Ghomrawi might be that there is no express evidence that had he been told that his application could be lodged, he would acted differently. Of course, it may be possible to draw an inference that, had Mr and Mrs Ghomrawi been told that the application could be processed, he may have taken proceedings for mandamus or may have lodged the document at a different office of the Department. There is no evidence that the documents were ever lodged again or what happened to them between 18 November 1996 and May 1999 when they were handed to Mr Lee. 67 Further, as a general rule, no estoppel will prevent the exercise of a statutory duty. No principle of estoppel can excuse an administrator from performing his or her statutory obligations – Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. Even when a power to act is a discretionary one, where there is a duty under statute to exercise a free and unhindered discretion, no estoppel can be raised to prevent or hinder the proper exercise of the discretion. The Court cannot make an order so as to contradict the provisions of a statute – Polat at 107. 68 Section 189 imposes a duty upon Commonwealth officers to detain any unlawful non-citizen. In fact, Mr Ghomrawi was, at the relevant time, 9 July 1998, an unlawful non-citizen. No estoppel would operate to hinder the performance of that statutory obligation. The Court cannot make an order which would contradict the provisions of the statute requiring an officer to act in that way. Discretion under Section 73 69 Mr Ghomrawi contended that where the grant of a visa is made subject to conditions precedent, once those conditions have been satisfied, there is no discretion to refuse to grant the visa. Reliance was placed on Trengove v Repatriation Commission (1994) 122 ALR 271 at 274-275. The general principle relied upon is that, where words signifying permission are used in a statute, the particular context of words and circumstances make it not only an empowering provision but indicate circumstances in which the power is to be exercised. In such a case, the word "may" may be construed as meaning "must" – Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106 at 134-5. 70 The procedures relating to bridging visas are as follows: · Under section 31(2), there are to be, in addition to prescribed classes of visas, the classes provided for in, inter alia, section 37. · Under section 37, there are classes of temporary visas, to be known as bridging visas, to be granted under subdivision AF of Division 3 of the Act. · Under section 31(3), the Regulations may prescribe criteria for a visa or visas of a specified class, which may include a class provided for by section 37. · Under regulation 2.03(1) the prescribed criteria for the purposes of section 31(3) are set out in Schedule 2 to the Regulations. · Item 030 in the Schedule 2 deals with Bridging C visas and the criteria that are to be satisfied. 71 Section 73 appears in subdivision AF of Division 3 of the Act. Section 73 provides as follows: "The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens." 72 Under paragraph 030.21 in Schedule 2 to the Regulations, the criteria to be satisfied at the time of an application for a bridging visa were, relevantly, that an applicant meets the requirement of subclauses (2), (2A), (3) or (5) of paragraph 030.212. Relevantly, paragraph 030.212(2) provided at the relevant time that an applicant meets the requirements if: (a) the applicant is not the holder of a substantive visa; and (b) the applicant has made a valid application for a substantive visa at the same time, and on the same form, as the bridging visa application; and (c) that application has not been finally determined. Assuming that the documents allegedly handed to Ms Capra on 18 November 1996 constituted a valid application, it appears likely that Mr Ghomrawi met the requirements of paragraph 030.212(2). Subdivision AA of the Act provides for "Applications for visas". Central to the subdivision are sections 45, 46 and 47. There are two alternative statutory paths to the conclusion that a visa application is a "valid" visa application – compliance with the conditions in subsection 46(1) or subsection 46(2). A valid visa application is to be considered by the Minister - see section 47. 73 Regulations 2.01 and 2.03 provide for the criteria to be applied to an application for a visa. In relation to bridging visas, further content is given to the prescribed criteria in Part 3 of Schedule 1 of the regulations - see 1301 (Bridging A (Class WA)), 1303 (Bridging C (Class WC)) and 1305 (Bridging E (Class WE)), each of which are to be made on Form 887. Regulation 2.07 imposes general requirements upon an application for a visa. Subsequent divisions of Part 2 of the regulations impose additional requirements such as, for example, the place where an application must be made (see regulation 2.10). Regulations 2.20 to 2.25 relate specifically to bridging visas. 74 Section 37 of the Act provides that bridging visas are to be granted under Subdivision AF, which includes sections 72-76. Read with sections 45-47, those sections suggest that the Minister is required to consider a valid visa application and that the decision whether or not to grant the visa involves a genuine exercise of discretion. 75 The context of section 73 indicates that the statutory scheme is not one in which mere compliance with the criteria set out in the regulations is sufficient basis for the grant of a visa, or automatically leads to the grant of a visa. Rather, the Minister must consider the application and "may" then grant a bridging visa. Accordingly, I would be disposed to conclude that the word "may" in section 73 should not be construed as meaning "must" in the present circumstances. 76 The Act contemplates that there are circumstances in which an application for a bridging visa might be taken to have been validly made (see, for example, section 46(2)(b) and regulation 2.22). It is unlikely to have been the legislative intention that there exist other circumstances, not mentioned in the Act, in which an application for a bridging visa might be "deemed" to have been made, let alone circumstances in which a bridging visa might be "deemed" to have been granted. The detail and complexity of the provisions in question, and the relevant regulations, are indicators that the Act, in this regard, is an exhaustive statement of the way in which visa applications are to be made and are to be taken to have been made. That indication appears to be confirmed by section 67 which expressly provides that a visa is to be granted by the Minister causing a record of it to be made. 77 The provisions outlined above impose numerous requirements to be satisfied before an application is a "valid visa application" and before a visa may be granted upon that application. The right of the applicant to a visa would only arise upon satisfaction of statutory conditions (including, for example, consideration of a valid visa application by the Minister under section 47) - see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579. 78 Thus, it is not possible to conclude that, had a valid application been lodged on 18 November 1996, a bridging visa would necessarily have been granted. For that reason, if no other, Mr Ghomrawi was not and cannot be treated as a lawful non-citizen after the bridging visa granted on 31 January 1996 expired. THE CONDITIONS OF MR GHOMRAWI'S DETENTION 79 The further amended application claimed: "An order in the nature or having the effect of habeas corpus on the grounds that the applicant has been and/or is being unlawfully deprived of his liberty in that [inter alia]: ………….. 'The conditions of the applicant's detention at Villawood and subsequently at Silverwater rendered such detentions unlawful'." 80 That allegation was variously particularised. The particulars may be summarised as follows: · While at Silverwater, Mr Ghomrawi contracted hepatitis B and became quite ill. · Mr Ghomrawi's detention at both Villawood and Silverwater, but especially at Silverwater, has caused him grave mental, emotional, psychological and physical injury and distress, in substantial part because such detention has deprived the applicant of a normal family relationship with his wife and infant son. · Mr Ghomrawi's detention at Silverwater, in effect a prison that for the most part houses convicted criminals and persons charged with serious crimes, constitutes punishment, not simple immigration detention. · The contracting of hepatitis B by Mr Ghomrawi, while detained at Silverwater, constitutes a failure of the Department, and by extension the Commonwealth, to properly protect him from disease. · The failure of the Department to diagnose the disease timely and properly constitutes a failure to protect or to properly protect Mr Ghomrawi as required by municipal law and international instruments. · The conduct of the Department, and its failure to manage the detention of Mr Ghomrawi properly, constitutes the infliction of punishment upon Mr Ghomrawi in a form that violates the Commonwealth's international obligations. 81 In his affidavit, Mr Ghomrawi made assertions concerning his medical condition. Those assertions were admitted without objection. The assertions were as follows: "13. Whilst at Villawood, I became sick with stress, anxiety and psychological fear. 14. Whilst at Villawood, I became very fearful for the future of my wife and baby son, both of whom I love very much. 15. The authorities at Villawood told me that I had misbehaved; but they did not offer me any treatment or counselling for my stress and fears, even though I told them that I was sick with stress and fear. ………………… 17. Whilst at Silverwater I am in constant contact with criminals and I am in great fear of them. I feel much different, and worse, in Silverwater than I did at Villawood. I feel that I am in a prison, but not because of any criminal act that I have committed. 18. Whilst I was in Silverwater I became very ill. I became very thin and my urine contained blood. My eyes became yellow. I complained to the prison authorities and to the Department, but they did nothing. 19. Finally, after my solicitor told me he complained to the Department about my health I was given a blood test. About a month later I was told I had hepatitis B. 20. I am getting better from the hepatitis, but I am sick in my heart with fear and anxiety about my wife and son. I can not bear being separated from them." 82 In addition, Mr Ghomrawi relied on a medico-legal report of Dr Julian Parmegiani. Dr Parmegiani's conclusion was as follows: "Mr Hassan Ghomrawi is a 26 year old man who has become severely depressed over the past 14 months. His symptoms fulfil criteria for the diagnosis of Major Depressive Episode… Mr Ghomrawi lacked energy, motivation and concentration. He lost 15 kilograms in weight, his sleep was poor and he was emotionally labile. His loss of temper was caused by his severe depression, as he externalised his distress. Mr Ghomrawi is not receiving appropriate psychiatric treatment, and there is no evidence in his medical records that a psychiatric assessment was requested by either medical or correctional staff. Some benefit could be obtained from anti-depressant treatment and supportive psychotherapy. Mr Ghomrawi's depression however is unlikely to improve significantly unless his circumstances change… Furthermore, he has now contracted Hepatitis B in gaol, a serious infection. Each year Hepatitis B virus causes 1,200 deaths in Australia from short term and long term complications. Some people infected with Hepatitis B become carriers and one quarter of these carriers will die from liver disease and cancer… Should be Mr Ghomrawi's carrier status be confirmed, immediate arrangements should be made for his family to be vaccinated against Hepatitis B." 83 Dr Parmegiani attached to his report an extract from "The Diagnostic and Statistical Manual of Mental Disorders" published by the American Psychiatric Association. The criteria are generally referred to as "DSM IV". The extract comprised "Criteria for Major Depressive Episode". Dr Parmegiani was cross-examined in relation to that extract concerning his conclusion that Mr Ghomrawi's symptoms fulfil criteria for the diagnosis of "major depressive episode". I shall return to that question in due course. 84 The Minister relied on the evidence of Dr Gordon R.W. Davies. Dr Davies' conclusion, upon his examination of Mr Ghomrawi, was as follows: "Reviewing the situation overall it is quite clear that Mr Ghomrawi feels angry, distressed and frustrated. However, he does not meet the criteria for a major depressive disorder as laid out in the DSM IV. Of the criteria listed… Mr Ghomrawi satisfies only numbers 1, 4 and 8. Weight loss (criterion 3) is probably attributable to his Hepatitis and would therefore be excluded. Realistic fears of being murdered also would not be included in criterion 9. I would caution that referral to this diagnostic criteria is probably not the correct use of the DSM, as it is neither designed or validated for use in the medico-legal context. The question of illness is better in this case determined by the effect of his psychological state on his activities of daily living and whether if he had been seen with a view to treatment that some psychiatric intervention would be warranted. On this basis I would regard him as having adjusted as well as might be expected to the circumstances of his detention and would not prescribe any anti-depressant. Although Dr Parmegiani's comments on the wisdom of Hepatitis B vaccination for his wife and son are apposite, in fact, Mr Ghomrawi's risk of developing a carrier state is of the order of five to ten percent. The incubation period of the disease is from about six weeks to six months which would suggest that his infection was acquired since his arrival at Silverwater, and both the razor sharing and the tattooing process would seem to have fallen in this risk period; as well as the possibility of infection arising from injecting for drug use." 85 Dr Parmegiani describes himself as a general and forensic psychiatrist. Dr Davies described his field as that of adult, general and forensic psychiatry. While Dr Parmegiani was cross-examined by counsel for the Minister, Dr Davies was not cross-examined on behalf of Mr Ghomrawi. Dr Parmegiani also gave oral evidence in which he said that, if a person placed in immigration detention who had no facility in the English language and who had threatened an act of self harm and attempted to carry it out was to be moved to a prison setting as opposed to an immigration detention setting, it would be prudent to have that person evaluated medically and psychiatrically. He said that his concern was that a person presenting with such symptoms would be depressed and that a young man's depression tends to be externalised. That stress tends to be projected towards other people and comes out as anger. If you have a person who is very angry repeatedly and also threatens self harm, Dr Parmegiani would be concerned that the person is developing a clinical depression that would need treatment with anti-depressants. 86 Dr Parmegiani was then cross-examined by counsel for the Minister in relation to his opinion based on the criteria set out in DSM IV. DSM IV may be summarised as follows: "A Five (or more) of the following symptoms have been present during the same two week period and represent a change from previous functioning; at least one of the symptoms either (1) depressed mood or (2) loss of interest or pleasure. NOTE: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations. [Nine criteria are then set out] B The symptoms do not meet criteria for a Mixed Episode. C The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. D The symptoms are not due to the direct physiological effects of a substance (e.g. a drug of abuse, a medication) or a general medical treatment (e.g. hyperthyroidism). E The symptoms are not better accounted for by bereavement, i.e. after the loss of a loved one, the symptoms persist for longer than two months or are characterised by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation." 87 Dr Parmegiani's conclusion was based upon information furnished to him by Mr Ghomrawi and not upon his own observations. In the course of cross-examination, Dr Parmegiani accepted in effect that, in so far as Mr Ghomrawi satisfied certain of the criteria, that may be the consequence of his hepatitis B condition. Dr Parmegiani also accepted that at least one of the criteria was not applicable in the present case. 88 It is difficult, in the absence of any cross-examination of Dr Davies, to reject Dr Davies evidence. Further, while I do not doubt the competence and good faith of Dr Parmegiani, his conclusion is based very much upon information furnished by Mr Ghomrawi. In so far as he was satisfied that criteria in DSM IV were satisfied, some of those criteria may well be attributable to Mr Ghomrawi's hepatitis B condition. In the circumstances, I am not satisfied, on the balance of probabilities, that Mr Ghomrawi has suffered a major depressive episode. 89 That is not to say that Mr Ghomrawi is not severely depressed by his circumstances. I have no doubt that a man who has not been found guilty of any crime who finds himself in a prison will feel a very grave sense of frustration and anger. That sense may well be exacerbated by contraction of the disease from which Mr Ghomrawi presently appears to be suffering. It is an appalling state of affairs, if it be the fact, that a man who has committed no crime, other than being unlawfully in Australia, should be subjected to circumstances under which it is possible for such a serious disease to be contracted. 90 It may well be that, in permitting that to happen, the Commonwealth is in breach of some duty to take care in respect of Mr Ghomrawi. So much was alleged in the further amended application. However, while at one stage Mr Ghomrawi sought to amend to include a claim for damages, I did not allow that amendment. It was only foreshadowed after the evidence had closed and in the course of address. Mr Ghomrawi may have a cause of action against the Commonwealth. However, I express no view whatsoever on that question since it is not before me. 91 Nevertheless, it was alleged that some breach of duty on the part of the Commonwealth gives rise to the conclusion that the detention of Mr Ghomrawi, if otherwise lawful, was rendered unlawful. I do not understand the juridical basis for such a conclusion. It may be, as Mr Ghomrawi has sought to establish, that a decision as to the manner of his detention under the Act is reviewable. However, that review arises in accordance with the principles of administrative law. There is no basis upon which the evidence concerning Mr Ghomrawi's medical condition, or the conditions of his detention, can lead to a conclusion that otherwise lawful detention pursuant to section 189 of the Act has become unlawful. REMOVAL TO SILVERWATER Factual Circumstances 92 On 9 July 1998, Mr Ghomrawi was placed in immigration detention at the Villawood Detention Centre. He remained there until 8 September 1998. On that day, a decision was made to transfer him to Silverwater. 93 On 8 September 1998, the Centre Manager of the Villawood Detention Centre forwarded a memorandum to the Department Manager at Villawood. The memorandum recorded, inter alia, the following: "Detainee GHOMRAWI has been involved in a number of incidents at the VIDC since his arrival. He has demonstrated an aggressive, abusive and threatening behaviour to other detainees. Mr GHOMRAWI has also blatantly and aggressively challenged staff and has been abusive and threatening towards them. He has been counselled on numerous occasions about his unacceptable behaviour, but has not heeded this advice. It has been explained to detainee GHOMRAWI that the VIDC is not a prison but a place where asylum seekers are held whilst their cases are reviewed for possible refugee status. As such it is expected that all detainees exhibit a tolerant outlook, respectful of the privacy of the other detainees and the good order of the VIDC. He says that he understands this and does not want to cause any trouble, yet his behaviour is unacceptably contradictory and he continually presents as a management problem. Examples of his recent unacceptable behaviour include: · 26 July 98 – (Incident Report 116/98 refers). Involved in an altercation with another detainee (WANG F). The altercation was allegedly over gambling debts from games of pool between the two detainees. Detainees counselled and cautioned regarding their unacceptable behaviour. · 21 August 98 – (Incident Report 148/98 refers). Aggressive behaviour displayed by detainee GHOMRAWI, after detainee demanded breakfast outside of the scheduled mealtime. Kitchen staff did in fact give him alternative food (bread, cheese and jam) but this was to the detainees liking and he demanded more. This was not forthcoming. The detainee returned to the Officers' Station ten minutes later and kicked the security door. The detainee was counselled regarding his unacceptable behaviour. · 23 August 98 – (Incident Report 147/98 refers). Detainee GHOMRAWI involved in slamming a door, voicing obscenities, threatening, abusive and aggressive behaviour towards staff in the visits area, resulting in his having to be restrained by staff and placed on 15 minute security observations. Detainee GHOMRAWI counselled regarding his unacceptable behaviour. · 24 August 98 – (Incident Report 149/98). Officers responded to loud disturbance caused by detainee GHOMRAWI in Stage 1. During this exchange, detainees GHOMRAWI and WHEBI exchanged threats and accusations over noise being allegedly made by each party and subsequent disturbance of sleep. Detainees counselled regarding unacceptable behaviour. · 25 August 98 – (Incident Report 147/98). Commenced Hunger Strike. Finished Hunger Strike on 27 August 98. · 7 September 98 – Following a CERT call in Stage 1 (altercation in TV room between other detainees), those detainees in the dining room were told to remain there and not proceed into the main area (until the altercation had been resolved). Detainee GHOMRAWI ignored this instruction, raised his right arm and using the lower part of his arm pushed a female Officer aside and left the dining room. · 7 September 98 – 2145 hours. Detainee GHOMRAWI committed an act of self-harm by cutting his hand in the area of his left thumb with a razor blade. The 3-4cm cut required only steri-strips and a bandage. Detainee GHOMRAWI then threatened to kill himself if he was placed in a single room and again threatened to kill himself if his demand to see the Centre Manager was not met within one hour. He was abusive to the Night Supervisor (OIC). Following medical treatment, detainee GHOMRAWI was placed in a single room and on 2-minute observations. The door was left open with two Officers in attendance at all times for the remainder of the night. · 8 September 98 – A search of the area occupied by detainee GHOMRAWI by Detention Officers found a tube of contact adhesive secreted under the detainee's bed. Such adhesive is often used as an inhalant by substance abusers. Although not proven, it has been suspected that detainee GHOMRAWI has been under the influence of some substance in recent times. The VIDC does not however, have the powers to initiate a drug-testing regime. Detainee GHOMRAWI admitted that the glue was his. Detention staff did not issue this item to him and items of this nature are viewed as a risk to the security and good management of the Centre." 94 The memorandum ends with a summary and recommendation as follows: · Mr Ghomrawi presents as a continuing management problem at the VIDC. · The attached report from ACM psychologist J. Sheedy sees that the detainee admits to having an aggressive history, often getting into fights and trouble. He is then apologetic after the aggressive incidents. This behaviour appears to have continued at the VIDC. I am advised, however, that detainee Ghomrawi's actions are not driven by any medical/psychological condition. · DIMA Officials advise that detainee Ghomrawi has been charged with kidnapping and aggravated sexual assault offences. It is believed that he is due for trial in October. In addition, there appears intelligence that he may be involved with other offences, including murder, in Lebanon. He is deemed by DIMA as a risk of absconding. · Detainee Ghomrawi actions demonstrate that he his [sic] capable of endangering the safety of both other detainees and staff. His continuous aggressive behaviour and intimidation of both staff and other detainees poses a risk to the security, good order and management of the VIDC. Detainee Ghomrawi has failed to respond to counselling regarding his unacceptable behaviour and the environment that he is in. · In view of the above and the fact that the VIDC does not have the facilities to combat substance abuse (such as non contact visits, strip searches and urinalysis [sic]) detainee Ghomrawi's placement in the minimum security conditions of the VIDC is believed to be highly inappropriate it is recommended that Mr Ghomrawi be transferred to a State Correctional Centre." 95 The reference in the memorandum to "the attached report from ACM psychologist J. Sheedy" appears to be a reference to a handwritten note dated "8/9/98". The note is written on a document called "PROGRESS NOTES". It begins with the handwritten words "Psychologist: 10.15 am". The document appears to be a note of an interview of Mr Ghomrawi by J. Sheedy, a psychologist. 96 Also on 8 September 1998, Mr Frank Donatiello, who is described as "NSW Business Manager, Villawood", sent a minute to Mr Greg Kelly, the Regional Manager of the Bankstown office of the Department. The minute was in the following terms: " TRANSFER TO STATE PRISON – HASSAN GHOMRAWI Please refer to the attached reports received from ACM staff at Villawood IDC, including medical staff, recommending the transfer to a state prison of Hassan GHOMRAWI on the basis that his violent and disruptive behaviour poses a risk to other detainees, himself and staff at the low security facility at Stage One. MSI 157 of 1 July 1997 – Transfer of Detainees to State Prisons – has been consulted. These guidelines indicate that: * While being held at an IDC a person's behaviour is considered to be unacceptable for the low security IDC environment, because of: - the risk to other detainees. - violent behaviour and/or unlawful behaviour, the inability of management and the detainee to resolve the unacceptable behaviour; or - the risk of absconding from lawful custody… (para 2.1); * if a detainee is demonstrating unacceptable behaviour that cannot be managed in the low security environment of the IDC, and counselling has not resulted in any improvement, then a medical/psychiatric assessment should be undertaken to establish if the reason for the persons [sic] behaviour is medically based. A medical opinion should also be sought in all instances prior to a decision being taken to transfer a person from an IDC to a prison. Where it is found that a medical/psychiatric condition may be contributing to the unacceptable behaviour, medical advice must be followed. (Para 4.1); * there should be well founded and well documented reasons for the transfer on the grounds of continuing risk to other detainees (Para 4.2); and * a person who has demonstrated a history of violence, or other threatening or disruptive behaviour should be placed in a state prison where there are more adequate facilities for custody and/or treatment (Para 4.4). The incident reports provided by ACM concerning Mr GHOMRAWI's behaviour indicate that he has disrupted the running of the IDC; He has been involved in a number of incidents at the VIDC since his arrival. He has demonstrated an aggressive, abusive and threatening behaviour towards staff and other detainees; Counselling of Mr GHOMRAWI has failed to improve his behaviour; Given his behaviour, the and the [sic] attendant risk to himself and staff, it would seem appropriate to transfer him to a State facility. I recommend that Hassan GHOMRAWI be transferred to a State facility and that, in accordance with MSI 157, he be provided with the attached Notice of Transfer to a Person in Immigration Detention." The reference to "the attached reports received from ACM staff at Villawood IDC, including medical staff" appears to have been a reference to the memorandum of 8 September 1998 to which I have already referred. 97 The documents in evidence before me included a document, entitled "Notice of Transfer to Person in Immigration Detention", which is addressed to Mr Ghomrawi. The notice relevantly provides as follows: "This notice is to inform you that you are to be transferred from your current place of immigration detention to be held in another place of immigration detention (as defined in section 5 of the Act). The reason(s) for this transfer is/are as follows: Your unacceptable behaviour cannot be managed in the low security environment of the IDC, and counselling has not resulted in any improvement. Given your behaviour and the threat to other detainees and staff, it has been deemed appropriate to transfer you to a State facility. You are to be transferred immediately and there is no review of this act of transfer." The notice goes on to contain the following: "If you think that the Department has done something unfair, or unreasonable, or wrong in its dealings with you, then you have the right to contact the Commonwealth Ombudsman to ask them to investigate your complaint. ………………… The ombudsman's office cannot change the decision to detain you and will not consider the merits of your visa application. However, the office can investigate your complaint if it is about some administrative action taken by the Department, for example, a decision to transfer you to prison… The Ombudsman can, if your complaint is found to be justified, recommend to DIMA that it does something to correct the situation." The document contains a handwritten note "Refused to sign". It also contains signatures purporting to be witnesses. 98 Having regard to Mr Ghomrawi's inability to read English, it is not surprising that, if the document was given to him, he refused to sign it. The document, amongst many others, was tendered by Mr Ghomrawi although no submissions were addressed to it. I consider that an inference should be drawn that the document was handed to Mr Ghomrawi who refused to sign it. 99 Amongst the documents tendered on behalf of Mr Ghomrawi, to which very little reference was made by his counsel, are various documents bearing dates between 9 July 1998 and 8 September 1998. Included were documents of the following character relating to Mr Ghomrawi: · mental health questionnaire/observations; · medical reception assessments; · medication charts; · progress notes; · general request forms being requests for medical attention; · watch, log and notes; · risk treatment plans; · BP charts. The documents appear to me to record regular observations of Mr Ghomrawi with varying frequencies during the period in question. For example, the progress notes appear to record interviews of Mr Ghomrawi by various officers on 17, 26, 27 and 28 July and 11, 12, 13, 23, 24, 25, 26 and 27 August 1998. The notes appear to be some form of medical assessment although there was no evidence about the circumstances in which the documents were brought into existence. 100 Also included is a document entitled "Clinical Reception Assessment" relating to Mr Ghomrawi bearing the date 8 September 1998. The document appears to have several sections including: · mental health assessment; · suicide and self harm risk assessment; · drug and alcohol assessment; · referrals; · reception health status notification form; · health problem notification form. The provenance of the document is not clear. It appears to contain a photograph of Mr Ghomrawi and each of the sections enumerated above has been completed. It may be a document completed upon admission of the applicant to Silverwater, although that is not clear. No submissions were made concerning the document. Contentions 101 Mr Ghomrawi contends that the requirements of "MSI 157 of 1 July 1997 – Transfer of Detainees to State Prisons", that were in force and were apparently relied upon by the Minister on 8 September 1998, were mandatory yet were not complied with by the decision-maker. That instrument, whatever it might be, was not in evidence. In particular, there was no evidence as to the status of such an instrument, who issued it and whether, as a matter of practice, it is normally complied with. I am unable to conclude, from the evidence before me, that the instrument was one compliance with which was mandatory in any sense. 102 The minute of 8 September 1998 refers to parts of the MSI 157 document. Only paragraphs 2.1, 4.1, 4.2 and 4.4 are quoted. Assuming those parts are accurately quoted, the context of the quoted parts is unknown. It is difficult to reach a conclusion, in those circumstances, that there has been a failure to comply with relevant guidelines. 103 Paragraph 2.1 states, in effect, that a person's behaviour, when in an immigration detention centre, is to be considered to be unacceptable for such an environment because of violent behaviour or the inability of management and the detainee to resolve the unacceptable behaviour. The memoranda that I have set out in some detail above are well capable of supporting a conclusion that a decision-maker's opinion that Mr Ghomrawi's behaviour was unacceptable for a low security immigration detention centre environment could be justified. 104 Paragraph 4.1 refers to medical/psychiatric assessment being undertaken, medical opinion being sought and medical advice being followed. Mr Ghomrawi complains that no medical or psychiatric assessment was undertaken, notwithstanding that a conclusion had been reached that Mr Ghomrawi was demonstrating unacceptable behaviour that could not be managed and that was not improved by counselling. As I have indicated, there are significant records in evidence of medical and psychological observations of Mr Ghomrawi. Assertions were made on behalf of Mr Ghomrawi that the material produced constitutes the whole of the relevant material available from the Department. Assuming that to be so, I have difficulty in concluding that no medical or psychiatric assessment was undertaken. 105 On the other hand, there is no clear evidence before me that a medical opinion was sought prior to making the decision to transfer Mr Ghomrawi from Villawood to Silverwater. If it be the fact that the evidence before me is complete as to the material available to the decision-maker, I would probably conclude that a medical opinion was not sought prior to the decision being taken to transfer Mr Ghomrawi. 106 I do not consider that the evidence justifies a conclusion that a medical or psychiatric condition was contributing to Mr Ghomrawi's unacceptable behaviour prior to his transfer. Accordingly, no question of following medical advice arises. 107 There is no evidence that Mr Ghomrawi was invited, in any formal sense, to show cause why he should not be transferred. I am satisfied that he was shown the "Notice of Transfer to Person in Immigration Detention", although I conclude that he would not have understood the document. If Mr Ghomrawi was entitled to the opportunity to make submissions as to whether he should be transferred, I do not consider that he was given such an opportunity in any formal sense. 108 However, I am not satisfied that the occasion for such an opportunity arose in the circumstances. The detention of Mr Ghomrawi under section 189 of the Act was lawful. The manner and conditions of the detention are matters of executive action. The material indicates that there were several occasions prior to 8 September 1998 in which Mr Ghomrawi's conduct was regarded as unacceptable. The material indicates that Mr Ghomrawi was counselled on several occasions concerning his unacceptable conduct. I do not consider that, in the circumstances, there was any procedural unfairness in making the decision to transfer him. 109 I am not persuaded that the decision, based as it was on the material that I have outlined, could be said to be unreasonable in the administrative law sense, if that be relevant. The decision to transfer Mr Ghomrawi was an executive act. I do not consider that it was made arbitrarily or capriciously. 110 The fact that Mr Ghomrawi had inflicted harm upon himself is a relevant consideration to be taken into account in making a decision as to the circumstances of his detention. If the facilities at Villawood were inadequate to provide proper supervision to ensure that he would not cause harm to himself in the future, that fact is clearly relevant in deciding to remove him to a place where there can be adequate supervision. 111 The material to which I have referred indicates that, while no formal medical opinion may have been sought, some assessment of Mr Ghomrawi's medical and psychiatric condition was undertaken. In particular, the psychological observations indicate that consideration was given to his psychiatric condition. The evidence indicates that, when the occasion arose, regular watch was maintained over Mr Ghomrawi's physical condition. I accept that Mr Ghomrawi's medical and psychiatric condition is a relevant consideration for a decision-maker. However, I do not consider that, on the evidence, there was a failure to have regard to that consideration. 112 I do not consider that the evidence justifies a conclusion that the decision to transfer Mr Ghomrawi to Silverwater was made for the purpose of avoiding any difficulty that might arise if he attempted to inflict harm upon himself again. That was a consideration properly taken into account. However, it was not the purpose for which the power was exercised. The decision-maker gave as the reason for making the decision the fact that Mr Ghomrawi had disrupted the running of the Villawood facility. The decision was made because of the attendant risk to Mr Ghomrawi and staff. The purpose for the exercise of the power was the maintaining of order within the Villawood facility. I consider that that was a proper purpose for the exercise of the power in question. 113 I consider that the attempt to impugn the decision of 8 September 1998 fails. DECISIONS NOT TO RETRANSFER Factual Circumstances 114 It appears that a submission was prepared on 15 September 1998 concerning the transfer of the applicant from Silverwater back to Villawood. The submission was not in evidence but a file note of Mr Graham South, Manager, Compliance, Bankstown of 15 September 1998 records that he considered the submission. Mr South said in his file note: "Notwithstanding his improved behaviour at Silverwater over the last week and assurances given to the case officer Bal Sanjui, I believe it is premature to consider transfer back to the IDC at this time. The matter should be considered again at the usual one month review period (8 October 1998). I rang IDC Manager, Frank Donatiello to discuss the case. I advised him I was concerned not to hold Mr Ghomrawi too long at the Remand Centre, given the possibility that further court delays may lead to lengthy detention, but am also mindful of his past behaviour and broken assurances to conform to IDC rules of behaviour. Frank concurred with my assessment. In his opinion immediate return would be a threat to the good management of the Centre." 115 On 7 October 1998, Mr John Robicheau, a compliance officer with the Department, attended Silverwater to interview Mr Ghomrawi. Mr Robicheau recorded in a file note that Mr Ghomrawi told him that he had no problems at Silverwater but requested that he be sent back to Villawood. Mr Ghomrawi went on to say that it would be better for him at Villawood because he did not like the type of people there as they used drugs and there were needles there. Mr Ghomrawi gave a promise not to give any more problems at Villawood. Mr Robicheau recorded that Mr Ghomrawi was in good spirits and gave no indication as to any problems. 116 On 12 October 1998, Ms Jean Newton of the compliance section of the Department received from Silverwater a document in relation to Mr Ghomrawi entitled "Review of Place of Detention for Immigration Detainee". The document contained the following report concerning Mr Ghomrawi: "General pod routine is followed. Behaviour is/was acceptable whilst in custody." 117 On 12 October 1998, Ms Newton forwarded a minute to Mr Kelly, the Regional Manager of Bankstown, referring to Mr Robicheau's report and the report from Silverwater, saying as follows: "It would seem that Mr Ghomrawi has not been involved in any activities or behaved in any way that is unacceptable. In view of the above reports I am of the opinion that Mr Ghomrawi will behave in an acceptable manner if transferred to the IDC and recommend that this be done as soon as possible." The document contains an endorsement by Mr South dated 12 October 1998 that he agreed with the recommendation. 118 However, on 16 October 1998, a memorandum was sent by Mr W.E. Cahill, the Centre Manager at Villawood, to the Department Manager at Villawood. The memorandum repeated verbatim much of the memorandum of 8 September 1998 from the Centre Manager to the DIMA Manager to which I have already referred. A further memorandum, which bears the date 14 October 1998, was clearly brought into existence on 16 October 1998. That memorandum relevantly provides as follows: "Detainee Ghomrawi was transferred to Silverwater MRRC on 8 September 1998… He had demonstrated his willingness to use personal physical intimidation towards other detainees. Mr Ghomrawi has blatantly and aggressively challenged staff and has been abusive towards them. In addition, Mr Ghomrawi has been involved in demonstrated acts of defiance towards ACM management and is seen as an agitator of other detainees. Examples of his unacceptable behaviour are documented in my memo of 16 October 1998 attached. The fact that detainee Ghomrawi now says that he will comply with the rules of the VIDC is seen to be of little substance… All of the factors in the previous recommendation concerning his past behaviour and DIMA status still applies to detainee Ghomrawi. In addition, there are some new factors, which more strong support the unsuitability of detainee Ghomrawi to be held in the minimum security conditions of the VIDC, namely: · Stage 1 of the VIDC is currently near and occasionally over capacity… · ACM have recently averted a mass escape of detainees of a certain profile… involving persons received from correctional facilities who have completed sentences for trafficking in drugs. · Detainee Ghomrawi's capacity to agitate other detainees cannot be overstated in the current potential volatile situation. · I therefore strongly recommend that detainee Ghomrawi not be returned to the VIDC. Such a move would seriously jeopardise the security and management of the Centre and could put staff and other detainees at considerable risk of harm." 119 On 16 October 1998, Mr South endorsed on Ms Newton's memorandum of 12 October 1998 the following: "Mr Kelly, in view of the information [in the memorandum of 16 October 1998 from the Centre Manager] I now reverse my recommendation of 12/10/98. I recommend he remain at Silverwater MRRC and that we monitor the situation at the IDC over the next month." 120 Mr Greg Kelly, the Regional Manager, also endorsed the following on the memorandum of 12 October 1998: "Mr Ghomrawi is to remain at Silverwater MRRC. I note the strong reservation held by the IDC staff (ACM). Case to be reviewed in one month." 121 Mr Ghomrawi, accordingly, remained at the Silverwater facility. 122 On 11 November 1998, Mr Robicheau interviewed Mr Ghomrawi again and prepared a report bearing that date. On 16 November 1998, the compliance section of the Department at Bankstown received a report in respect of Mr Ghomrawi saying: "I am able to report that the general pod routine is followed. Behaviour is/was acceptable whilst in custody." 123 On 17 November 1998, Mr Cahill forwarded a memorandum to the DIMA manager at Villawood referring to the incident reports enumerated in the report of 16 October 1998. The memorandum contained the following: "· Over the past four days there have been a number of incidents of violence committed in the Stage 1 area of the VIDC which necessitated the Centre being put on a state of High Alert over the weekend. Two detainees have been transferred to the Silverwater MRRC with more possible transfers pending. Those detainees involved in these incidents have all spent time in State Correctional Centres. · Taking into account Mr Ghomrawi's previous antecedents it would not be appropriate for me to recommend his return to the VIDC in the present circumstances. · In view of the above, and the fact that the VIDC does not have the facilities to combat substance abuse (such as non contact visits, strip searches and urine analysis) detainee Ghomrawi's placement in the minimum security conditions of the VIDC is believed to be highly inappropriate. It is recommended that Mr Ghomrawi remains in a State Correctional Centre." 124 Also on 17 November 1998, Jo-Anne Hamill, Assistant Manager of Compliance Branch, Bankstown forwarded a minute to Mr South referring to the above reports and concluding as follows: "Taking into account all of the above factors including the new information regarding Mr Ghomrawi's previous court appearance in Lebanon and the current volatile situation at the VIDC I am of the opinion that he should remain in custody at the MRRC until he is again reviewed on 17.12.98." The minute contains an endorsement from Mr South agreeing with that recommendation. 125 An e-mail from Ms Newton to Mr Peter Mitchell of 21 December 1998 records the following: "I am in the process of doing the monthly review of Ghomrawi, Hassan Salah. He was interviewed by John Robicheau on Thursday and the same report came back that he has had no problems, his health is good and wishes to be transferred to the IDC. He also stated that he has been keeping to himself and will do the same at the IDC. I spoke to Kate Ryan, his welfare officer at the MRRC. She stated "That man certainly has attitude. I saw him giving lip to someone only yesterday". In the light of this verbal statement I have requested to put it in writing. Based on this verbal comment, by intention is to recommend that he remain at the MRRC." 126 On 21 December 1998, Ms Newton received a memorandum from Kate Ryan at Silverwater enclosing a report on Mr Ghomrawi's behaviour as follows: "Ghomrawi is reasonably well behaved and complies with routine, but becomes extremely vocal and abusive on the telephone. While he has been in my area I have had no bad reports about his behaviour when I have not been present (days off). I hope this helps you with your assessment." The report of 21 December 1998 appears to be in compliance with the request that she "Put it in writing". 127 On 21 December 1998, Mr Cahill, after repeating verbatim material in his memorandum of 17 November 1998 said: "· The Centre has only stabilised since the above events and I feel that the return of detainee Ghomrawi would be a prime factor in reversing this trend. Taking into account Mr Ghomrawi's previous antecedents it would not be appropriate for me to recommend his return to the VIDC in the present circumstances." 128 On 21 December 1998, Ms Newton, in a minute to Mr Kelly, after referring to the above communications, said: "In weighing up the factors before me I am of the opinion that Mr. Ghomrawi should remain in custody at the MRRC until he is again reviewed on 17.01.1999." Mr Kelly endorsed the following on that minute: "Mr Ghomrawi should remain in a correctional facility. I note the two previous reviews and ACM's views on the good order of the IDC." 129 On 19 January 1999, Ms Newton received a further report from Kate Ryan at Silverwater on the behaviour of Mr Ghomrawi as follows: "General pod routine as follows. Behaviour is/was acceptable whilst in custody." 130 On 20 January 1999, Mr Ghomrawi was interviewed by Mr Rob McSwiney. Mr McSwiney prepared a minute to Ms Newton recording the following comments made by Mr Ghomrawi: "I know I did wrong at the IDC but not bad enough to come here. There are drugs here & some people are sick & I'm worried may catch a disease from them. ………………… If you behave you are treated well, if you don't you are treated bad. I don't bother anyone & I don't let them bother me. I talk with friends." 131 On 20 January 1999, Mr Cahill forwarded a memorandum to the DIMA Manager, Villawood. After repeating material contained in earlier memoranda, the memorandum finished as follows: "· The Centre has only stabilised since the above events and at present Acacia has a population on [sic] 75 detainees, 13 of whom are on Security Observations of 30 minutes to 120 minutes and 16 who have been received from the MRRC or Police. I feel that the return of detainee GHOMRAWI to this situation would be a prime factor in quickly reversing this trend. Taking into account Mr. GHOMRAWI's previous antecedents it would not be appropriate for me to recommend his return to the VIDC in the present circumstances. ………………… · …It is recommended that Mr GHOMRAWI remain in a State Correctional Centre." 132 On 20 January 1999, Ms Newton sent a minute to Mr Greg Kelly, Delegate, Compliance Program, Bankstown. Ms Newton, after recounting some of Mr Ghomrawi's history, said as follows: "The following matters have been taken into consideration: Mr Ghomrawi has an Australian citizen wife and child. A report from the welfare officer at the MRRC that states that Mr. Ghomrawi follows general routine in the MRRC and that his behaviour is acceptable. A report from a departmental officer that states Mr. Ghomrawi said he wants to return to the VIDC and that he would behave himself and that things would not be the same as before. He stated that he knew he did wrong things at the IDC but not bad enough to be transferred to the MRRC. A report from ACM, Centre Manager, VIDC states their concerns of a firearm being introduced into the minimum security of the IDC as they do not have the facilities to combat the introduction of contraband and substance abuse. ACM stated that Mr. Ghomrawi's wife, child and sister-in-law were regular visitor to the IDC and on one occasion a large pair of scissors was found on his wife prior to her visiting the centre. They also raised concerns that the child is normally in a pram and it is impossible to carry out a thorough search. Both his wife and sister-in-law were implicated in an incident in the visits area on 23.08.98 which was one of the incidents that cause Mr. Ghomrawi to be placed in the MRRC. In weighing up the factors before me I am of the opinion that the security of detainees and ACM staff could be compromised if Mr. Ghamrawi [sic] were to be transferred to the IDC as the risk of firearms being smuggled into the Centre cannot be dismissed. My recommendation is that Mr Ghamrawi [sic] remain at the MRRC and that his detention be reviewed on 20.02.99." On 20 January 1999, Mr Kelly endorsed his agreement with that recommendation. 133 On 21 January 1999, Mr Cahill sent a further memorandum to the DIMA Manager, Villawood. Much of the material of 20 January 1999 was repeated. However, the following additional material was included: "· Further recent intelligence has been received on 14/1/99 from the NSW Police that GHOMRAWI was the prime suspect in a murder. It was also confirmed to police by both his wife and sister-in-law that he was known to carry a firearm and had discharged it in their presence. · In view of this, and the fact that the VIDC does not have the facilities to combat the introduction of contraband and substance abuse, such as non contact visits and strip searches there is a real possibility of a firearm being introduced into the minimum security of the VIDC. I refer to Incident Report of September 8, 1998 – The introduction of contraband (Contact Adhesive Glue) by GHOMRAWI into the VIDC. · Both GHONMRAWI [sic] wife, baby and sister-in-law were regular visitors to the VIDC and on occasion during searches unusual items, including a large pair of scissors, where [sic] found on his wife prior to her entering the visits area. As the baby was normally in a pram it was impossible to carry out a thorough search. Both were implicated in an incident involving GHOMRAWI in the visits area on August 23, 1998. (Refer to Incident Report 147/98). ………………… · Taking into account Mr. GHOMRAWI's previous antecedents and the new intelligence received from the NSW Police on the 14/1/99, it would not be appropriate for me to recommend his return to the VIDC in the present circumstances." 134 On 18 February 1999, Ms Newton received a facsimile from Mr Peter Dodd, Senior Case Manager at Silverwater, concerning Mr Ghomrawi's conduct. The report was in the following terms: "In terms of the review of his conduct and behaviour whilst an inmate here at the MRRC Fordwick I have found his general pod routine to be of an acceptable standard whilst in custody. However his conduct concerning his behaviour around the inmates phones has not been to an acceptable standard. He may often become abusive to who ever he makes the call to often swearing and shouting. He has also been found to be disruptive to other inmates who are trying to use the phone." On 18 February 1999, Mr Ghomrawi was interviewed by Mr McSwiney and a minute recording that interview was forwarded by Mr McSwiney to Ms Newton. 135 On 22 February 1999, Mr Cahill sent a further memorandum to DIMA Manager, Villawood. After recounting much of the material in his earlier memoranda he ended by saying: "Taking into account Mr Ghomrawi's previous antecedents and the new intelligence received from the NSW Police on the 14/1/99, it would not be appropriate for me to recommend his return to the VIDC in the present circumstances." 136 On 22 February 1999, Ms Newton sent a minute to Mr Kelly. After recounting the background, she said as follows: "The following matters have been taken into consideration: Mr. Ghomrawi has an Australian citizen wife and child. Although, when in the community Mr. Ghomrawi did not live with her but lived with his sister-in-law. A report from the welfare officer at the MRRC that states that Mr. Ghomrawi follows general pod routine in the MRRC and that his behaviour is at an acceptable standard. However, Mr. Ghomrawi's behaviour around the telephones has not been to an acceptable standard. He is often abusive to the person he is speaking to by swearing and shouting and is disruptive to other inmates wanting to use the telephones. Mr. Ghomrawi was previously charged with "Use of a Telecommunications Service to Harass". He was found guilty and given recognisance in the sum of $500 to be of good behaviour for 2 years plus court costs. An Immigration officer interviewed Mr. Ghomrawi on Thursday 18 February. The officer stated that Mr. Ghomrawi was more receptive to questions on this visit than he had been previously. He stated that his health was fine and he was being treated well. As he is only allowed three visits per week only his wife and son visit him. He will not accept visits from other people. Mr. Ghomrawi stated that he was wrongly accused of a murder in Lebanon and spent 6 months in remand and the charges were dropped. This is in conflict with his previous information to the Department where he stated that he had shot and killed a person and had spent six months in prison. The allegations were put to Mr. Ghomrawi that he had a firearm in Australia. Mr. Ghomrawi stated that it wasn't true and that the problem with his cousin Mahmoud occurred because of a dispute over a cleaning contract. He denied having a firearm and stated that his friends had them. A previous report from ACM, Centre Manager, VIDC stated their concerns of a firearm being introduced into the minimum security of the IDC as they do not have the facilities to combat the introduction of contraband and substance abuse. Although Mr. Ghomrawi denies that he carried a firearm he stated that his friends did and as the IDC is a minimal security area and Mr. Ghomrawi may have visits from these friends. ACM do not have the powers to search visitors entering the premises. Mr. Ghomrawi was asked to complete an application for a Lebanese Travel Document. This he refused to do stating that he would not sign anything unless his agent gave him permission to do so. He also stated that he would not return to Lebanon because the family of the murdered man in Lebanon was still looking for him for revenge. Mr. Ghomrawi did consent to having a passport photograph taken. In weighing up the factors before me I am of the opinion that the security of the detainees and ACM staff could be compromised if Mr. Ghamrawi [sic] were to be transferred to the IDC. Mr. Ghomrawi has a propensity for aggression and violence and his appearance before NSW State Police on numerous occasions can not be dismissed as just "bad luck". My recommendation is Mr. Ghomrawi is remain [sic] at the MRRC and that his detention be reviewed on 20.03.99." On 24 February 1999, Mr Kelly endorsed his agreement with that recommendation. 137 On 19 March 1999, Mr Ghomrawi was interviewed again by Mr McSwiney who forwarded a minute recording his interview to Amit Gupta, described as "Team Leader – Compliance". 138 On 22 March 1999, Amit Gupta made a file note in the following terms: "I contacted A/N's welfare officer Eric Douglas at MRRC Silverwater. Eric stated that he has had no contact with Ghomrawi. Eric further stated that if there were any concerns re A/N's health/well being, he would have been notified. Given that Eric has not been approached by A/N, means that there are no untoward concerns. Eric also checked up with Education, Psychological and Alcohol/Drug rehabilitation sections of MRRC. There have been no approaches/concerns re A/N's health/well being." 139 On 22 March 1999, Mr Ross Furlong, the Operations Manager at Villawood sent a memorandum to DIMA Manager, Villawood recounting the contents of earlier memoranda and ending as follows: "Taking into account Mr. GHOMRAWI's previous antecedents and the new intelligence received from the NSW Police on the 14/1/99, it would still be inappropriate for me to recommend his return to the VIDC in the present circumstances." 140 On 1 April 1999, Amit Gupta sent a minute to Olga Wynne, Regional Manager, of the Department, Bankstown reviewing Mr Ghomrawi's continued detention at Silverwater. The minute contained a recommendation in the following terms: "Mr Ghomrawi has an Australian citizen wife and child. However, whilst in the community, he lived with his sister in law. His Welfare Officer at MRRC, Silverwater states that he had no concerns about the behaviour, health/well-being of Mr Ghomrawi. He also stated there have been no contact/approach made by Mr Ghomrawi with Education, Psychological and Alcohol/Drug Rehabilitation sections of MRRC. Mr Ghomrawi was previously charged with "Use of a Telecommunications Service to Harass". He was found guilty and given recognisance in the sum of $500 to be of good behaviour for 2 years plus court costs. In an earlier interview with an Immigration officer, Mr Ghomrawi stated that he was wrongly accused of a murder in Lebanon and spent 6 months in remand and the charges were dropped. This is in conflict with his previous information to the Department where he stated that he had shot and killed a person and had spent six months in prison. He also stated that he would not return to Lebanon because the family of the murdered man in Lebanon was looking for him for revenge. An Immigration Officer interviewed Mr Ghomrawi on 19 March '99 through an Arabic Interpreter. He was receptive to the questions maintaining his health was good and has no problems with other inmates or prison staff. He stated that he is allowed 3 visits a week and his wife, child and sister in law visited him regularly. Report dated 22 March 1999 from ACM, Centre Manager, VIDC state their concerns of a real possibility of a firearm being introduced into the minimum security of the VIDC and they do not have the facilities to combat the introduction of contraband and substance abuse. Although Mr Ghomrawi denies carrying a firearm but admits that his friends did. Mr Ghomrawi's wife, child and sister in law were regular visitors to VIDC. On one of these visits, a large pair of scissors was found on his wife prior to her entering the visitors area. Mr Ghomrawi has been previously refusing to sign an application form for a Lebanese passport/travel document. Mr Ghomrawi was again asked to sign an application for a Lebanese passport. He refused to sign stating he has a Federal court action pending and if that is unsuccessful, he will complete the form. Although Mr Ghomrawi's record of recent behaviour at the State facility has been satisfactory, it does not outweigh the seriousness of his alleged criminal activities. It is also considered that VIDC is a low security environment and there could be a threat to the safety of ACM staff and other detainees. In weighing up the factors before me, I recommend that Mr Ghomrawi continue to be detained in MRRC, Silverwater. It is considered that his transfer to the low security VIDC facility would not be appropriate in these circumstances." Olga Wynne endorsed approval of the recommendation on 1 April 1999. 141 On 13 April 1999, Mr Ghomrawi was interviewed once again by Mr McSwiney. Mr McSwiney prepared a minute recording the interview, addressed to Amit Gupta. Mr Ghomrawi was interviewed again by Mr McSwiney on 29 April 1999. That interview was also recorded in a minute from Mr McSwiney to Amit Gupta. 142 There was no evidence before me of any review during the month of April. However, on 10 May 1999, Mr McSwiney sent a minute to James McCormack, Regional Manager, Bankstown, which reviewed the background and contained the following recommendation: "Mr Ghomrawi has an Australian Citizen wife and child. However, whilst in the community, he lived with his sister in law. On 22.3.99 his Welfare Officer at the MRRC, Silverwater (f:72) stated that he had no concerns about the behaviour, health/well-being of Mr Ghomrawi. On 18.02.99, Mr Ghomrawi stated that he was wrongly accused of a murder in Lebanon and spent 6 months in remand and the charges were dropped. This is in conflict with his previous information to the Department where he stated that he had shot and killed a person and had spent six months in prison. He also stated that he would not return to Lebanon because the family of the murdered man in Lebanon was looking for him for revenge. On 29.4.99 I interviewed (f:139) Mr Ghomrawi at the MRRC through an Arabic Interpreter. He was uncooperative and stated that any questions we had of him should be directed to his solicitor Toufic Laba Sarkis. He further stated 'I will do nothing for Immigration'. Mr Ghomrawi again refused to sign an application for a passport application. On 3.5.99 a report (f:141) was received from the Operations Manager, ACM regarding the return of Mr Ghomrawi to the VIDC. In that report the Manager stated 'there is still a grave concern to the management of the VIDC in light of previous reports sent to DIMA management'. The referred to report dated 22.3.99 from ACM (f:73) stated their concerns of a real possibility of a firearm being introduced into the minimum security of the VIDC and they do not have the facilities to combat the introduction of contraband and substance abuse. Although Mr Ghomrawi denies carrying a firearm but admits that his friends did. Mr Ghomrawi's wife, child and sister in law were regular visitors to VIDC. On one of these visits, a large pair of scissors was found on his wife prior to her entering the visitors area. Mr Ghomrawi's record of alleged criminal activities cannot be discounted. It is also considered that VIDC is a low security environment and there could be a threat to the safety of ACM staff and other detainees. Mr Ghomrawi has a current 417 application outstanding (f:147). In weighing up the factors before me, I recommend that Mr Ghomrawi continue to be detained in MRRC, Silverwater. It is considered that his transfer to the low security VIDC facility would not be appropriate in these circumstances." Mr McCormack endorsed his approval of that recommendation on 11 May 1999. Contentions 143 The principal contention on behalf of Mr Ghomrawi concerning the decisions made on the successive monthly reviews is that the decision-maker did not bring an open mind to bear on the question but simply followed slavishly the reasoning of each previous decision. 144 The attack began with the first decision in October 1998. Ms Newton originally recommended retransfer as soon as possible. However, following the receipt of further information, she reversed her first recommendation. Principally, the recommendation was changed because of the memorandum of 16 October 1998 from the Centre Manager. Mr Ghomrawi contended that that document was "the progenitor of a fiction that has followed Mr Ghomrawi to this day". He pointed out that, notwithstanding incidents prior to 7 September 1998, no attempt was made to transfer Mr Ghomrawi before he threatened to kill himself and he cut himself with a razor blade. The complaint appears to be that the incidents complained of could not support a rational conclusion that Mr Ghomrawi should be transferred from Villawood to Silverwater. 145 It is not the Court's function to place itself in the position of the decision-maker. It is not appropriate for the Court to express any view concerning the decision, except in so far as the decision was not made according to law. I do not consider that the successive monthly reviews, as reflected in the minutes that I have summarised above, give rise to an inference that the relevant decision-makers did not turn an independent mind to the question on each occasion. Certainly, successive monthly reviews recount the same material. That, however, is understandable. Each successive decision-maker was entitled to take into account the circumstances which led to the decision to transfer Mr Ghomrawi to Silverwater in the first place. The question is whether circumstances had changed such as to justify transferring him back to Villawood. 146 The reports from Silverwater indicate, for the most part, that Mr Ghomrawi behaved in an acceptable manner. The reports to that effect were taken into account in making the successive decisions. On the other hand, the decision-makers took into account the concern expressed by the Centre Manager at Villawood that the presence of Mr Ghomrawi could upset the delicate balance of conditions within Villawood at the relevant times. I am not satisfied that Mr Ghomrawi's challenge to the successive monthly review decisions is established. On the face of the documents, which I have summarised above, each successive decision-maker took into account the relevant considerations before him or her. I do not consider that the evidence justifies a conclusion that the memorandum of 16 October 1998, which brought about the recommendation not to transfer Mr Ghomrawi back, should not be taken at its face value. 147 The challenge to the decisions made on the monthly reviews must also fail. CONCLUSION 148 It follows from the conclusions outlined above that Mr Ghomrawi was an unlawful non-citizen as at 9 July 1998 and that his detention under section 189 of the Act has been lawful at all times since that day. Further, Mr Ghomrawi has failed in his challenges to the decision to transfer him from Villawood to Silverwater and the decisions on the monthly reviews thereafter not to transfer him back from Silverwater to Villawood. It follows that the proceedings should be dismissed. 149 I have already dismissed the application in so far is it sought review of the decision of the Immigration Review Tribunal of 8 April 1999. However, that dismissal was on the ground of the lack of utility in deciding the question. That was not a ground raised by the Minister. When I raised the question of the utility of the proceedings on that issue, Mr Ghomrawi's counsel made some submissions. However, it is fair to conclude that the matter was not strongly contested. In the circumstances, it is appropriate that there be no order as to the costs of the proceedings in so far as they were concerned with review of the decision of the Immigration Review Tribunal of 8 April 1999. However, Mr Ghomrawi should pay the Minister's costs in respect of all other aspects of the proceedings. I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 22 October 1999 Counsel for the Applicant: J.M. Gersten P. Robinson (11-12 October 1999) J.A. Coombs (12 October 1999) Solicitor for the Applicant: Alex. Lee, Solicitor Counsel for the Respondent: A.F. Backman (14-15; 22 and 28 September 1999) H. Burmester QC (11-12 October 1999) R.P.L. Lancaster (11-12 October 1999) Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14-15 September; 22 September; 28 September; 11-12 October 1999 Date of Judgment: 22 October 1999