FEDERAL COURT OF AUSTRALIA

Uolilo v Minister for Home Affairs [2019] FCA 336

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to rely on Grounds 1, 2, and 4 as set out at [22] in the reasons for judgment.

2.    Leave to rely on Grounds 3 and 5 as set out at [22] in the reasons for judgment be refused.

3.    Within 7 days of the date of these orders, the parties file an agreed form of orders or, in the absence of agreement, their competing form of orders to give effect to the reasons for judgment. These orders should deal also with the question of costs.

4.    The matter be listed for directions at 9:30 AM on 27 March 2019 before Robertson J.

5.    Costs reserved.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant is a 31 year old male citizen of Samoa who most recently arrived in Australia on 31 August 2014 on a Partner (Provisional) (Class UF) visa. The applicant had married an Australian citizen in Samoa on 27 January 2012. They have six children.

2    On 13 January 2014, the applicant was convicted in Samoa of grievous bodily harm and of being armed with a dangerous weapon and sentenced to 33 months in prison (24 months for the first offence and 9 months for the second offence, with the terms of imprisonment to be served concurrently). The offences occurred in October 2013.

3    Sometime in late August 2014, it appears on 30 or 31 August 2014, the applicant escaped or absconded from prison in Samoa having served only 7 months of his sentence.

The decision of the delegate

4    On 27 March 2018, a delegate of the Minister decided to refuse to grant the applicant a visa under s 501(1) of the Migration Act 1958 (Cth). The visa in question was a Partner (Migrant) (Class BC) visa.

5    The written record of the decision stated that the applicant had not satisfied the delegate that he passed the character test.

6    The delegate found, in their reasons for decision, that as a result of the conviction and sentence the applicant had a substantial criminal record and did not pass the character test by virtue of s 501(6)(a) (which applies if the person has a substantial criminal record) with reference to s 501(7)(c) (which takes a person to have a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more).

7    The delegate then considered whether or not to exercise their discretion to refuse to grant the applicant a visa, applying Ministerial Direction No. 65.

8    As later noted by the Administrative Appeals Tribunal, the delegate found that in both the applicant’s visa application and on his incoming passenger card he had failed to disclose details of his criminal conviction and prison sentence in Samoa. Further, the Tribunal found that the documents which the applicant had submitted to the Australian authorities were “false or misleading”, or bogus in nature, in contravention of both s 5(1) of the Migration Act and cl 4020(5) of the Migration Regulations 1994 (Cth).

Proceedings in the Administrative Appeals Tribunal

9    The applicant applied to have the decision of the delegate reviewed by the Tribunal. This application was made on 29 May 2018. It also appears that the applicant did not receive notice of the visa refusal decision until 24 May 2018.

10    Before the Tribunal, the applicant was represented by experienced counsel.

11    On 13 August 2018 the Tribunal affirmed the decision under review.

12    In summary, the reasoning of the Tribunal was as follows. It found that the applicant was not a person of good character as required by the Migration Act and the decision of the delegate to refuse his visa application was correctly made. The Tribunal said that although there were weighty considerations why the revocation decision (sic) should be set aside, they were overborne by more compelling reasons that the original decision should be affirmed. In particular the applicant’s escape or absconding from lawful custody in Samoa could not be overlooked.

13    There is initial confusion at [29] and [31] of the Tribunal’s reasons which proceed by reference to s 501(3A), where the Minister must cancel a visa if satisfied that the person does not pass the character test and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. The Tribunal then went on to consider how it should exercise its discretion and referred correctly to the discretion it was exercising under s 501 at [73]. At [136], the Tribunal stated that its decision was not a decision made under s 501(3A) or s 501CA. Nevertheless, as I later set out, on a large number of occasions and in particular at its concluding paragraphs [140]-[141], the Tribunal erroneously referred to the cancellation of the visa and allowing the non-revocation decision to remain in place.

14    The Tribunal concluded as follows:

138.    The risk of harm in relation to a person likely to be returned to another jurisdiction was considered by this Tribunal in QGMJ where it was determined that this matter should be considered as somehow “secondary” in the calculus of criteria. Although that line of reasoning was disapproved and overruled by the Federal Court, it was on the basis that such considerations were not “secondary” and that the Tribunal had misapplied the law in that regard. In doing so, the Federal Court did not seek to elevate the calculation of threat of harm above other considerations, merely insisting that it must be given equal weight with other criteria. In Mr Uolilo’s case, the Tribunal has sought to do just that.

139.    More authoritatively, the claim that potential removal to a place where the applicant might suffer some form of harm or punishment was considered by the High Court. This case similarly involved the operation of section 501(3A) of the Act and the High Court found that this line of attack on the mechanical operation of section 501(3A) was unsustainable.

140.    It is by no means inevitable that the denial of a visa to Mr Uolilo at this time will result in his (forcible) repatriation or return to Samoa. As the Applicant’s submission rightly points out that is a matter for determination in another place and at another time. It is a matter where the Minister or his Delegate will have to weigh up all the competing factors, including those outlined in this determination. The only matter for this Tribunal is the calculus in relation to the cancellation of the specific visa under current consideration.

141.    It may seem that the Tribunal is taking a particularly harsh and unsympathetic approach to a person and family who will be impacted severely by any decision to allow the non-revocation decision to remain in place, and the Tribunal itself feels deeply conflicted on this point.

142.    Had there not been an escape from lawful custody it would have been relatively easy to set aside all other considerations and find in favour of Mr Uolilo on the basis of giving paramountcy to the best interests of the minor children, but by his own actions, Mr Uolilo has effectively compromised, if not actually removed this as an option for the Tribunal.

143.    Respect for the rule of law and the judgments of an independent judiciary in democratic societies is too fundamental a matter for this, or any Tribunal, to put aside without there being reasons so special, unique and weighty, and public interest so compelling, that such a decision could be contemplated. In this instance such circumstances do not exist.

144.    The Tribunal believes that this consideration would be fundamental to the expectations of the Australian community. In the calculus of considerations, this weighs most heavily and it weighs fatally against Mr Uolilo.

(Footnotes omitted.)

Proceedings in the Federal Court

15    On 17 September 2018, the applicant filed in this Court an application for judicial review of the decision of the Tribunal.

16    The grounds of the application were as follows:

1.    The Second Respondent misunderstood the jurisdiction it was exercising. Throughout the decision the Second Respondent refers to its task being to determine whether the non-revocation decision should be set aside.

Particulars

Throughout the decision the Second Respondent refers to its task being to determine whether the non-revocation decision should be set aside.

2.    The Second Respondent failed to have regard to relevant circumstances when it reasoned:

a.    that the circumstances applicable to the Applicant failing to complete his term of imprisonment in Samoa were immaterial; and

b.    that it was not possible to verify the veracity of the claims made by the Applicant in circumstances where the Applicant had been tested in cross examination.

3.    The decision is affected by legal unreasonableness as the statutory weighing process miscarried as the Tribunal said that “other considerations” were only “marginally” in favour of revocation when the reasoning of the Tribunal could lead to only one conclusion being that they heavily favoured the exercise of discretion to grant the visa notwithstanding the failure to pass the character test.

17    On 9 October 2018, the Court made the following orders, by consent:

1.    The first case management hearing listed before Justice Robertson on 14 November 2018 at 9:30am be vacated.

2.    The First Respondent file and serve a bundle of relevant documents (Court Book) by 5 December 2018.

  3.    The Applicant file and serve, by 19 December 2018:

(a)    any amended application containing complete particulars of the grounds of review sought to be relied upon; and/or

(b)    any affidavit containing additional evidence which is sought to be relied upon.

4.    The First Respondent serve any affidavit evidence to be relied upon by 30 January 2019.

5.    The application is listed for final hearing on 4 March 2019 at 10:15am before Justice Robertson in Sydney, with an estimated hearing time of one day.

6.    The Applicant file and serve written legal submissions and a list of authorities, no later than 10 working days before the hearing.

7.    The First Respondent file and serve written legal submissions and a list of authorities no later than 5 working days before the hearing.

8.    Copies of the authorities and point in time legislation upon which the parties will rely be filed and served by each party no later than three (3) business days before the hearing date.

9.    Outlines of submissions not to exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout.

10.    Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days clear notice of the time, date and place of that listing.

11.    Costs of today are costs in the proceedings.

18    On 23 January 2019, the applicant instructed his then firm of solicitors to cease acting and those solicitors filed a notice of ceasing to act on 14 February 2019.

19    It appears that on 18 February 2019 new solicitors were engaged by the applicant.

20    On 18 February 2019, the Court made the following orders, by consent:

  1.    Orders 5, 6, 7 and 8 of the Orders of 9 October 2018 be vacated.

2.    The applicant file and serve written legal submissions, limited to 7 pages, and a list of authorities, on or before 20 February 2019.

3.    The first respondent file and serve written legal submissions, limited to 7 pages, and a list of authorities, on or before 27 February 2019.

4.    The first respondent file and serve a joint bundle of the authorities and point in time legislation identified in the parties' lists of authorities on or before 1 March 2019.

5.    The application is listed for final hearing on 4 March 2019 at 2:15pm before Robertson J in Sydney, with a revised estimated hearing time of half a day.

21    It may therefore be seen that at the request of the applicant’s new legal representatives and with the consent of the respondent, the revised estimate of the required hearing time was half a day, as opposed to the original one day, and the hearing time was put back from 10:15 AM to 2:15 PM accordingly.

The applicant’s application

22    On 26 February 2019 the applicant’s new solicitors communicated that they wished to amend the application for judicial review, to advance the five following proposed grounds, which I have extracted from a document with 16 numbered pages:

Ground 1: The Tribunal misapplied section 501(3A) of the Migration Act 1958 (Cth) instead of section 501(1) of the Migration Act 1958 (Cth) from [27]-[33] of the decision record

…

Ground 2: The Tribunal misapplied Part C of Direction 65 instead of applying Part B of Direction 65 from [76]-[81] and [102] of the decision record

…

Ground 3: The Tribunal erred by finding that Australia's non-refoulement obligations were irrelevant at [107] of the decision record

…

Ground 4: The Tribunal failed to consider the applicant’s claims of harm “outside the concept of non-refoulement and the international obligations framework” from [135]-[140] of the decision record

…

Ground 5: The Tribunal took into account irrelevantly the applicant’s “release” from the prison in Samoa as a factor regarding his “substantial criminal record” and when considering the “expectations of the Australian community” from [142] to [144] of the decision record

…

23    The applicant also sought to file a nine page statement of claim, including a claim for damages for unlawful detention on the basis, amongst other things, that ss 189 and 196 of the Migration Act “are beyond power and invalid”. Indeed, by his counsel, the applicant sought to hand up at the commencement of the hearing an amended statement of claim stating that s 501CA(6) is invalid. No notices under s 78B of the Judiciary Act 1903 (Cth) had been given. I was told by counsel for the applicant that the claim for unlawful detention depended on the claimed invalidity of ss 189 and 196.

24    The applicant sought to rely on accompanying written submissions of some 20 pages in single spacing.

25    The applicant also proposed short minutes of order as follows:

1.    Orders 3, 4, 5, 6 and 7 made on 9 October 2018 and orders 1, 2 and 3 made on 16 February 2019 are vacated.

2.    The applicant is granted leave to file and serve an amended application, the statement of claim, any evidence to be relied on, written submissions, limited to 20 pages with a font size of 12 points and 1.0 line spacing, and a list of authorities on or before 25 February 2019.

3.    The first respondent is granted leave to file and serve any evidence to be relied on, written submissions, limited to 20 pages with a font size of 12 points and 1.0 line spacing, and a list of authorities, on or before 1 March 2019.

4.    The first respondent is to file and serve a joint bundle of the authorities and point in time legislation identified in the parties' lists of authorities on or before 1 March 2019.

5.    The application is listed for final hearing on 4 March 2019 at 2:15pm before Robertson J., in Sydney, with a revised estimated hearing time of half a day.

26    At the hearing, the applicant sought to read an affidavit dated 26 February 2019 and sworn by the principal solicitor for the applicant’s new solicitors, Nikjoo Lawyers. I admitted paragraphs 1, 2, 4 and 5 of that affidavit, which dealt with the timing of recent events in the proceedings. I treated as submissions paragraphs 3 and 6 of that affidavit. In particular I did not grant to the applicant leave to rely on his proposed amended application for review other than the grounds themselves which I have set out at [22] above, his proposed statement of claim, his proposed written submissions and his proposed short minutes of orders. I told counsel for the applicant that he should make oral submissions in relation to the proposed amended grounds and I would take those submissions as to the merits of the grounds into account in deciding whether or not to grant leave to amend and in deciding the application for judicial review.

27    Counsel for the applicant said that leave would need to be given to file and serve the (amended) statement of claim, that then there would have to be s 78B notices served and that the unlawful detention aspect of it might be able to be heard at a later date if the applicant succeeded on his public law grounds.

28    Counsel for the applicant submitted that the applicant had engaged new representation and, upon the advice of counsel, new grounds were found. There was unforeseen complexity. The amendments were necessary to allow the real questions of fact and law to be heard and determined and the amendments were necessary to avoid a multiplicity of proceedings. Counsel submitted that the grounds sought to be raised were arguable. He also submitted there was a reasonable explanation for the delay.

The parties’ submissions

29    The respondent opposed the application to amend to add Ground 3, Ground 4 and Ground 5, as set out at [22] above, and filed written submissions on 4 March 2019, to the following effect.

30    The respondent Minister submitted the issues appeared to be:

(a)    whether the applicant should be given leave to rely upon the proposed amended application;

(b)    whether the applicant should be given leave to add to this proceeding a claim of false imprisonment and damages; and

(c)    whether there is any error in the Tribunal’s exercise of its jurisdiction.

31    The Minister contended, in summary, that:

(a)    the Tribunal’s error in referring to s 501(3A) of the Migration Act and matters relevant to revocation decisions was not a material error and thus did not affect the exercise of its jurisdiction: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2] to [4]; Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [30].

(b)    the Tribunal did not improperly exclude from its consideration material relevant to the fact that the applicant is an escaped felon from Samoa;

(c)    the Tribunal’s reasoning that the other considerations were only marginally in favour of the applicant was not legally unreasonable;

(d)    the fact that the applicant’s Bridging A (Class WA) visa was cancelled on 27 March 2018 (whether or not that decision may be impugned), meant that the applicant was an unlawful non-citizen as at that date and subject to the lawful operation of section 189 of the Act: see Fernando v Commonwealth of Australia (2014) 231 FCR 251; special leave to appeal revoked: Fernando by his Tutor Ley v Commonwealth of Australia & Anor [2015] HCA Trans 286 (5 November 2015);

(e)    the applications for leave to amend the grounds of review and to add proceedings for false imprisonment and damages should be refused.

32    The applicant, through his counsel, said he did not wish to press any of the grounds in the application for judicial review as originally filed.

33    I indicated to counsel for the applicant that I had not read and did not propose to read the 20 page single spaced written submissions put before the Court without leave, but invited counsel to make oral submissions in relation to each of the five proposed grounds and in relation to leave to rely on them.

34    Counsel for the applicant submitted that the applicant had not been charged or convicted of any offence regarding his escape or absconding from prison in Samoa.

35    In relation to proposed Ground 1, the applicant contended that the Tribunal misapplied s 501(3A) instead of applying s 501(1), from [27]-[33] of its reasons, and the consequences played on the Tribunal’s decision-making process. Counsel accepted that the applicant did not meet the character test under s 501(1) in that he had a substantial criminal record as defined, but submitted he did not fall within s 501(3A)(b) as he was not serving a sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory.

36    In relation to proposed Ground 2, counsel for the applicant submitted that the Tribunal fell into jurisdictional error by misapplying or misunderstanding or misconstruing Part C of Direction No. 65 instead of applying Part B of that Direction. Counsel referred to the Tribunal’s reasons at [76]-[81] and [102]. Again, counsel submitted that this error infected the Tribunal’s decision-making process.

37    Counsel for the Minister did not oppose the grant of leave to the applicant to rely on Ground 1 and Ground 2 as they were in substance the same as Ground 1 of the application for review filed on 17 September 2018. I propose to grant that leave.

38    In relation to proposed Ground 3, counsel for the applicant relied primarily on the decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456. The applicant submitted that given the Minister’s existing personal findings about the applicant, it was likely that a future protection application would be decided on character grounds and in the premises it was likely that either the Minister or the delegate would not consider Australia’s non-refoulement obligations. The Tribunal’s assumption in this matter that those obligations would be heard as part of a future protection visa application were, counsel submitted, wrong in fact and in law. The revocation power was discretionary and the risk of significant harm to the applicant would be a matter to be weighed in the balance by the respondent. In contrast, the text and authority of s 65 involved a qualitatively different exercise. Counsel for the applicant submitted that the Tribunal failed to consider expressly the operation of s 196 and also failed to consider the operation of s 198.

39    In relation to proposed Ground 4, counsel for the applicant submitted that the Tribunal, at [135]-[144] of its reasons, failed to consider the applicant’s claims of harm outside the concept of non-refoulement and the international obligations framework. In particular, the Tribunal at [69] referred to the applicant’s various submissions to the effect that the Samoan prison and police system was corrupt. At [132], the Tribunal said it was mindful of the fact that to return the applicant to Samoa may mean that he might suffer reprisals at the hands of the prison authorities who facilitated or allowed his absconding. The Tribunal ultimately erred, it was submitted, in finding at [140] that it was by no means inevitable that the denial of a visa to the applicant would result in his forcible repatriation return to Samoa and that the issue of harm was a matter for determination in another place at another time. It was submitted that this was not a matter to be determined in another place and at another time but was to be determined there and then by the Tribunal.

40    In relation to proposed Ground 5, counsel for the applicant submitted that the Tribunal erred by taking into account at [142]-[144] an irrelevant consideration, namely the applicant’s escape or absconding from prison in Samoa, when considering the expectations of the Australian community. It was submitted that the expectations of the Australian community were limited to the applicant’s substantial criminal record, which consisted of his convictions for the assault and using a dangerous weapon.

41    In oral submissions counsel for the Minister addressed particularly proposed Grounds 3, 4 and 5.

42    Counsel submitted that the applicant was legally represented by counsel and by his solicitor before the Tribunal.

43    In relation to proposed Ground 3, counsel for the Minister submitted that the applicant put to the Tribunal in his statement of facts, issues and contentions that there were no non-refoulement obligations.

44    Similarly, in relation to proposed Ground 4, counsel for the Minister submitted that the harm that was being alleged by the applicant was the loss of contact with family, friends and the loss of the possibility of making a better life in Australia. There was no further harm alleged. There was no claim of fear of return in terms of any reprisals. Counsel for the Minister submitted that at [132] the reference to reprisals at the hands of the prison authorities was, with respect, an oddity in the Tribunal’s decision because it did not arise on the applicant’s claims or the evidence that was before the Tribunal. The concept of reprisals was not anywhere in the material about police corruption and on the facts before the Tribunal it was not a fear that the applicant had. Counsel for the Minister submitted that this was an error within jurisdiction.

45    In relation to proposed Ground 5, counsel for the Minister submitted that it was unduly narrow to read paragraph 11.3(1) of Direction No. 65 as concerning only proven offences for which the applicant had been charged and convicted, rather than those the applicant had admitted. Here the applicant had admitted that he knew he had to go back to jail but when he found out his visa was approved he got on a plane to Australia to see his wife and children. The applicant had said that he acknowledged that not returning to jail was unacceptable. The applicant’s escape or absconding from prison in Samoa was not an impermissible consideration given how broadly paragraph 11.3(1) was drafted.

Consideration

46    I consider first Ground 1 and Ground 2 which I have granted the applicant leave to rely on.

47    As to Ground 1, in my opinion the Tribunal made an error at [29] and [31] of its reasons in referring to s 501(3A) when its jurisdiction was to consider the exercise of the relevant discretion in s 501. (There was not any contention before the Tribunal that the applicant did pass the character test and could satisfy the Tribunal that he did. I understand there to be no contention in this Court that the applicant passed the character test as defined in s 501(6).)

48    Although, at [136], the Tribunal said that the present was not a decision made under ss 501CA or 501(3A), the Tribunal frequently referred to the decision being a non-revocation decision (see at [5], [81], [103], [118], [121], [129] and [141]) and reasoned in terms of the applicant’s visa having been cancelled (see at [31], [103], [135], [137] and [140]). Also, the authorities to which the Tribunal referred at [137]-[140] concerned ss 501(3A) and 501CA(4). The reference at [139] to Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333, which concerned the constitutional validity of s 501(3A), appears particularly distracting. Immediately after those references, at [140]-[141], the Tribunal again incorrectly referred to the question before it as “the cancellation of the specific visa” and a “decision to allow the non-revocation decision to remain in place…”. In my opinion these errors were material as they show that the Tribunal was misdirecting itself as to the nature of the discretion to be exercised. A decision whether or not to exercise the discretion to refuse to grant a visa in s 501(1) is substantially different to a decision whether or not to exercise the discretion under s 501CA to revoke a mandatory cancellation decision under s 501(3A), which would require, at least, the decision maker to be satisfied, relevantly, that there is another reason why the cancellation decision should be revoked.

49    Ground 1 succeeds.

50    Ground 2 stands or falls with Ground 1. The Tribunal’s error at its footnote 44 and in [102] in referring to the incorrect parts of Direction No. 65 ([13] and [14] in Part C rather than [11] and [12] in Part B), and under the heading “Other Considerations”, confirm that the Tribunal did not direct itself to the applicable discretion in s 501 but to the distinct discretion in s 501CA(4). While it may be said that, at [106], the Tribunal applied the “other considerations” listed in paragraph 12 (in Part B) rather than the “other considerations” listed in paragraph 14 (in Part C) this in my view does not answer the complaint that in substance the Tribunal regarded itself as considering whether or not to revoke the original decision under s 501CA.

51    In my opinion, Ground 2 does not require a separate answer.

52    I turn then to consider the remaining grounds, Grounds 3, 4 and 5, for which leave is required and is opposed.

53    One consideration is that if these amendments were permitted, the entirety of the matter could not have proceeded at the hearing, not least because of the challenge to the constitutional validity of provisions of the Migration Act in respect of which no notice under s 78B of the Judiciary Act had been given.

54    Another consideration is that the explanation for the delay on the part of the applicant is not at all clear, in view of the orders made by the Court on 9 October 2018 by consent and the further orders made on 18 February 2019, by consent. The best that could be said is that new lawyers found more points.

55    In relation to proposed Ground 3, the applicant by his then legal representatives, including counsel, submitted to the Tribunal that there were no non-refoulement obligations. Subject to my consideration of proposed Ground 4, it is not evident that there was a factual basis for such a claim and BCR16 does not arise in relation to proposed Ground 3. I am not persuaded that the applicant should be permitted by late amendment to challenge the Tribunal’s decision on this ground, which was expressly not raised before the Tribunal when the applicant was legally represented.

56    I refuse leave to rely on proposed Ground 3. I would however add that, if the matter is remitted to the Tribunal, this refusal of leave should not, of itself, be taken to prevent the Tribunal from considering the issue of non-refoulement if that claim is then made.

57    In relation to proposed Ground 4, although it does not appear that the applicant claimed in his statutory declarations or other material that he was or would be subject to any such threats or reprisals in Samoa, the Tribunal found, as it said at [134] for itself, that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa. The Tribunal identified at [132] that the applicant may suffer reprisals at the hands of the prison authorities; identified in the heading above [134] the question whether the threat of harm in this instance was relevant; and set out again at [135] that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa. The Tribunal then said, at [138], that the calculation of threat of harm should be given equal weight with other criteria.

58    The Tribunal’s dispositive reasoning on this point appears at [140], where the Tribunal said the repatriation or return of the applicant to Samoa (including, implicitly, the consequences for the applicant) was a matter for determination in another place and at another time. Here it appears the Tribunal was purporting to adopt the submission put to it on behalf of the applicant that the Tribunal should not be concerned with whether or not it would be appropriate for the applicant to be returned to Samoa to complete his sentence as that was a different matter dealt with through different processes. That submission in turn echoes an earlier representation put to the delegate on behalf of the applicant, in answer to the position of the Transnational Crime Unit/Interpol APIA that the applicant should return to Samoa to serve the remainder this sentence, that matters concerning extradition were for the Attorney-General’s Department and it was not for the delegate to determine whether or not the applicant should be extradited to Samoa to carry out the remainder of his sentence. It follows that, in my opinion, the legal representatives of the applicant were making a different point, confined to the relevance to the Tribunal’s decision of matters concerning extradition, which the Tribunal appears to have misunderstood.

59    Once the Tribunal had found as a fact, for itself, that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa, and having decided, at [136], that the Tribunal should consider the matter, it is arguable that the Tribunal should have gone further than it did at [140] in order to complete the exercise of its jurisdiction. Arguably, whether or not the applicant will be extradited to Samoa is not an answer to the apparent failure on the part of the Tribunal to decide how the fear of harm as so found by it should weigh in the exercise of its discretion under s 501.

60    Notwithstanding my doubts as to the adequacy of the explanation for the delay and the lateness of the application to amend in this respect, it is relevant that counsel for the Minister did not indicate that she was not in a position to deal with the ground or that there was other prejudice. Further, this application is an application for judicial review in the original jurisdiction of the Court and is not an appeal, where a stricter view may be taken of an application to add new grounds where a party was represented by counsel and solicitors before the primary judge.

61    I grant leave to the applicant to rely on proposed Ground 4.

62    As to the disposition of this ground, I consider it is not covered by the earlier decisions in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 and HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 (note also, HSKJ on appeal, [2018] FCAFC 217; 363 ALR 325) as those cases concerned the Tribunal erroneously applying a hierarchy of considerations under Direction No. 65. The present Tribunal said expressly, at [138], that it was not doing that.

63    I accept that BCR16 reflects a finding that in order for there to be a valid exercise of the statutory power under s 501CA(4), it is necessary to consider any risk of harm if the person was to be returned to his or her place of nationality (not just harm that would give rise to non-refoulement obligations) where that risk has been raised by the person concerned.

64    In the different context of s 501, and in the circumstances where the risk has not been directly raised by the person concerned, is it a jurisdictional error on the part of the Tribunal to leave the matter for another day on the basis that the risk of harm it had found would be dealt with in the context of the application for extradition in relation to the remainder of the applicant’s jail sentence?

65    In my opinion, in this respect the Tribunal has misunderstood and failed to complete the task required under s 501(1). It has postponed the consideration of, and therefore not considered, a factor which it found was relevant to the exercise of its discretion and to which it said it would give equal weight with other criteria. The Tribunal has postponed consideration because, it reasoned, the decision-maker in dealing with the extradition request would have to weigh up all the competing factors, so the Tribunal did not need to. However, in my opinion, adapting what was said in BCR16 at [49], deciding whether to refuse to grant a visa under s 501(1) involves a qualitatively different exercise to decision-making in relation to extradition. The question of the risk of harm, in these circumstances, should have been weighed by the Tribunal in exercising its discretion under s 501(1).

66    I uphold Ground 4.

67    Proposed Ground 5 appears to proceed on the basis that unless the applicant had been convicted under Samoan law, escape or absconding from lawful custody was a prohibited consideration for the Tribunal and that it therefore made a jurisdictional error. There is no basis for this ground. On a fair reading of its reasons, the Tribunal did not say that these matters established the applicant’s substantial criminal record as defined. Further, I do not regard it as arguable that Direction No. 65 prohibits the Tribunal, in considering the expectations of the Australian community, from taking into account the applicant’s admitted “unacceptable” action of not returning to jail in Samoa. Indeed the applicant, through his then legal representatives, accepted in the Tribunal that “the departure from Samoa without completing his sentence is a matter of community concern.”

68    I refuse leave to rely on proposed Ground 5.

Conclusion and orders

69    The application to amend to rely on proposed Grounds 3 and 5 is refused. I grant leave to the applicant to rely on proposed Grounds 1, 2 and 4. I uphold Ground 1 and Ground 4. I will direct the parties to bring in short minutes to give effect to these reasons.

Associate:

Dated:    14 March 2019