Federal Court of Australia

Uolilo v Minister for Home Affairs [2021] FCAFC 138

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal as taxed or agreed.

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

REASONS FOR JUDGMENT

NICHOLAS AND YATES JJ:

Introduction

1    Before the Court is an appeal from a judgment of a single judge of the Court dismissing the appellant’s application for judicial review of a decision of the second respondent (“the Tribunal”). By its decision the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) refusing to grant the appellant a Partner (Migrant) (Class BC) visa.

2    Before the primary judge, the appellant pressed six grounds of review all of which were rejected by her Honour. In his appeal, the appellant does not seek to identify any error in her Honour’s reasons or approach. Rather, the appellant seeks to raise three new grounds which, he accepts, were not raised before the primary judge. Some parts of her Honour’s reasons are relevant to the new grounds on which the appellant now seeks to rely but, as the grounds were not raised below, her Honour’s reasons do not directly address them.

3    At the commencement of the hearing, the appellant was given leave to file an amended notice of appeal, which deletes six grounds of appeal broadly corresponding to the six grounds of review rejected by the primary judge and inserts three new grounds of appeal. The appellant was given leave to file that document on the express understanding that the Court would still need to determine whether he should be given leave to rely on any of the three new grounds.

Factual Background

4    The primary judge’s reasons include a detailed account of the background to the appellant’s application for judicial review. The following account of the relevant facts is drawn largely from her Honour’s reasons.

5    The appellant, Valufitu Fiu Uolilo, is a Samoan national who has lived in Australia since 31 August 2014.

6    On 27 January 2012, the appellant married an Australian citizen and on 26 August 2013, sponsored by his wife, he applied for a Partner (Provisional) (Class UF) (Subclass 309) visa (the “temporary visa”) and a Partner (Migrant) (Class BC) (Subclass 100) visa (the “permanent visa”).

7    On 13 January 2013 the appellant was convicted in the Supreme Court of Samoa of two criminal offences, compendiously referred to by the Tribunal as “grievous bodily harm” and “armed with dangerous weapon”. He was sentenced to two years’ imprisonment for the first offence and nine months’ imprisonment for the second offence. The sentences were to be served concurrently.

8    On 27 May 2014 the appellant submitted to the Australian authorities a Penal Clearance certificate, purporting to be issued by the Samoan Ministry of Police and Prisons, stating that the appellant “has passed the records verification conducted by the Samoan Police” with findings of “no [c]riminal or [t]raffic offences”.

9    On 9 July 2014 the appellant was granted a temporary visa.

10    On 31 August 2014, having served seven months of his two-year sentence, the appellant absconded from jail, and flew from Samoa to Australia. On his incoming passenger card he ticked “No” against the question “Do you have any criminal conviction/s?” and declared the contents of the card to be true, correct, and complete.

11    On 12 September 2014 the Department of Immigration and Border Protection was advised that the appellant had escaped from jail and had travelled to Australia. A Penal Clearance Certificate was subsequently obtained from the Samoan Ministry of Police and Prisons which disclosed his convictions.

12    On 25 August 2016 the Department invited the appellant to comment on evidence suggesting that he had provided, or caused to be provided, a bogus document or false or misleading information in relation to his visa application, and as such may not satisfy the Public Interest Criterion (“PIC”) 4020(1) (contained in Sch 4 Pt 1 of the Migration Regulations 1994 (Cth)).

The first decision

13    On 4 October 2016 a delegate of the Minister refused to grant the appellant a permanent visa on the ground that the appellant did not meet PIC 4020 because he had provided a bogus document to the Department, being the “Penal Clearance Certificate”.

14    The delegate’s decision was set aside by the Tribunal on 12 October 2017. The Tribunal was satisfied that the information was false or misleading at the time it was given. But the Tribunal considered that there were compassionate or compelling circumstances that justified the grant of the permanent visa so that the requirements of PIC 4020(1) should be waived. The Tribunal remitted the visa application for reconsideration with a direction that the appellant met PIC 4020.

The second decision

15    On 27 March 2018 a different delegate refused to grant the appellant a permanent visa under s 501(1) of the Act. The appellant applied to the Tribunal for a review of this decision.

16    The Tribunal affirmed the delegate’s decision. Although it found that there were “weighty” considerations for setting aside the decision, it decided that those factors were outweighed by considerations favouring affirmation of the delegate’s decision.

17    The Tribunal’s decision was later quashed and a writ of mandamus issued requiring the Tribunal to determine the appellant’s application for review according to law: see Uolilo v Minister for Home Affairs [2019] FCA 336.

The Tribunal’s Decision

18    The proceeding before the primary judge concerned the subsequent (third) decision of the Tribunal made on 16 December 2019 on the rehearing of the application for review.

19    It was common ground that, because of the sentence he had received, the appellant did not and could not satisfy the Tribunal that he passed the character test. Accordingly, the only question for the Tribunal to determine was whether it should exercise its discretion to refuse the permanent visa under s 501(1). Taking into account all the evidence the Tribunal concluded that the primary considerations of protection of the Australian community and the expectations of the Australian community outweighed the other considerations and that the decision under review should be affirmed.

20    In light of the new grounds of appeal upon which the appellant seeks to rely, it is necessary to refer in some detail to three particular matters that were considered by the Tribunal.

21    The first concerns the appellant’s sentence. The Tribunal said at [46]-[55]:

[46]    The Applicant was convicted and sentenced to a term of imprisonment of 24 months for the offences of grievous bodily harm and being armed with a dangerous weapon by the Supreme Court of Samoa in relation to an incident which occurred in Samoa. On the basis of the evidence, this was a “one off” offence and there is no indication of any violent reoffending. Certainly no further charges have been laid.

[47]    I note that paragraph 11.1(1) of the Direction is of particular importance in considering this issue. It provides as follows:

    When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.

[48]    The Applicant put forward a number of matters in mitigation of his offence including that the victim was the aggressor in the violent incident; that the Applicant acted only in self-defence; that he had never had any prior convictions; and that the police had told him to plead guilty when the matter was taken to court, that he did not need a lawyer and that the consequences would not be serious. In the Applicant’s view, he was sent to prison because of a corrupt statement on the part of the police, made to the court.

[49]    I accept that the Applicant did not have any previous criminal record. I also accept his evidence as to the circumstances of how the offences of which he was found guilty occurred.

[50]    The difficulty for the Applicant is that the offences of which he was found guilty, namely grievous bodily harm and being armed with a dangerous weapon, are very serious. He does not deny assaulting the victim.

[51]    The Applicant did not have a lawyer for the Supreme Court proceedings. He stated that he was told by the police that he did not need a lawyer and did not pursue the matter further.

[52]    Whilst the Applicant is free to raise matters before the Tribunal related to his offence, the Tribunal cannot, and in my view should not, contradict or impugn a conviction by a Court, nor the facts upon which that conviction was based. This is well established in a number of cases including Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247; and Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441 [sic].

[53]    The Applicant was sentenced to a period of 24 months imprisonment. Given that imprisonment is usually a last resort, the severity of the offences is reflected in the length of that sentence. As Senior Member Poljak observed in PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] (footnotes omitted):

    The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to period of imprisonment totalling 96 months (eight years) and 30 days as a result of his offences.

[54]    The Applicant’s conduct in Samoa would attract criminal penalties in Australia if he were to commit the same offences in this country.

[55]    After he was convicted and sentenced the Applicant failed to serve his sentence as required and left the prison after serving only seven months in order to come to Australia. In evidence, the Applicant admitted that he knew that he was required to serve the full period of his sentence.

22    The second matter relevant to the new grounds of appeal concerns the Tribunal’s consideration of the impact on victims were the permanent visa granted. The Tribunal dealt with this matter in a single sentence at [90] where it said that “[t]here is no evidence before the Tribunal of any impact on victims if the visa were granted”.

23    The third concerns the Tribunal’s consideration of Australia’s non-refoulement obligations. The Tribunal observed that the appellant claimed that he would face significant harm if he were removed to Samoa because the manner in which he left Samoa had attracted media attention and shed light on “systematic” corruption in the Samoan justice system. The Tribunal noted his submission that this could give rise to non-refoulement obligations. The Tribunal said at [82]-[85]:

[82]    It was submitted by the Applicant that he would face significant harm if he were to be removed to Samoa, and that this could give rise to non-refoulement obligations. He claims that he has these fears due to the manner in which he left Samoa which resulted in media attention which has shed light on systematic corruption in the Samoan police and prison systems.

[83]    Paragraph 12.1(4) of the Direction provides as follows:

    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

[84]    In Minister for Immigration and Border Protection v Le [2016] FCAFC 120, the Full Federal Court set out a non-exhaustive summary of principles relating to whether Australia’s non-refoulement obligations are a mandatory consideration when exercising the discretionary powers conferred by subsections 501(1) or (2). Their Honours relevantly state at [61]:

   …

(e)    in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused…

[85]    It is therefore not necessary for me to determine whether non-refoulement obligations are owed for the purpose of determining whether the visa should be refused as it is open to the Applicant to make an application for a protection visa. I note that if the Applicant were to make such an application, Direction no. 75 requires the decision-maker to assess whether the Applicant is owed protection obligations because they are a refugee (section 36(2)(a)) or are owed complementary protection (section 36(2)(aa)) before any character concerns are considered.

24    The Tribunal also considered the risk that the appellant might suffer harm at a more general level (ie. outside the context of Australia’s non-refoulement obligations) if he were required to return to Samoa. The Tribunal said at [92]-[97]:

[92]    The Applicant gave evidence at the hearing about corruption in Samoa, particularly in the police force. He said that he was at risk of serious harm if he were to be returned to Samoa, because his departure from Samoa having only served a portion of his prison sentence had focused adverse attention onto the police.

[93]    The Applicant’s wife said that he would be likely to be killed if he were to return to Samoa. A newspaper article was given in evidence which outlined the circumstances as to the death of a man in police custody in Samoa. The Respondent submitted that this article could be given little weight as there was no evidence linking those events to any likely treatment of the Applicant.

[94]    The circumstances of the Applicant leaving Samoa certainly raise questions about the prison system and the police, as does the evidence that he was sent out from gaol to work each day but had to give the money earned to the police when he returned. Other media articles contained in the evidence indicate that there have been investigations into corruption in the Samoan prison system.

[95]    It appears somewhat extraordinary that the Samoan authorities were so inattentive that the Applicant was able to get a new passport, purchase an airline ticket and board a flight to Australia all within a 24 hour period, without the authorities appearing to notice.

[96]    On the basis of the limited evidence available, I find there is a risk of harm to the Applicant if he were to return to Samoa. The circumstances of his departure certainly appear extraordinary and it may be that he has drawn unwanted attention to failures in the system. Certainly the Samoan authorities want him back. There is however not sufficient evidence to enable a determination as to the degree of risk the Applicant personally would be likely to face and more evidence would be required in order to make such an assessment.

[97]    Accordingly, I find that the Applicant is at risk of harm if he was to return to Samoa and that this weighs against a refusal to grant the visa. However, I attach very limited weight to this issue given the lack of evidence.

25    With regard to the Tribunal’s reasons at [96]-[97], the primary judge found at [177] that it was open to the Tribunal to conclude that the evidence was insufficient to enable it to determine the degree of risk the appellant would likely face in Samoa and that this conclusion was neither legally nor factually unreasonable. None of her Honour’s findings on that issue were challenged on appeal.

The New Grounds

26    The appellant seeks leave to rely on the following three grounds set out in the amended notice of appeal as follows:

Ground 1: The Tribunal erred by applying Direction No 79 when purporting to assess ‘international non-refoulement obligations’ arising from the claims of the Appellant in circumstances where:

(a)    That was not, or was not a valid, direction under s 499 of the Migration Act 1958 (Cth) because it was inconsistent with the Act, and thus in breach of s 499(2); or

(b)    Alternatively to a, that aspect of the Directions was not a relevant consideration to a visa refusal.

Ground 2: The Tribunal erred by making a finding on a critical matter required to be considered by the direction of the Minister under s 499 of the Migration Act 1958 (Cth) for which it failed to take into account relevant material or for which there was no evidence, namely that ‘there was no evidence before the Tribunal of any impact on victims if the visa were granted’.

Ground 3: The Tribunal erred by applying the wrong law when it considered the sentence given to the Appellant, namely old case law concerning criminal judgments of Australian courts, rather than current case law, including case law dealing with judgments of foreign courts.

27    Curiously, the amended notice of appeal does not assert that any of the three errors referred to in grounds 1, 2 and 3 were jurisdictional errors. During the course of his argument, counsel for the appellant accepted that, in order for the appeal to succeed, it was necessary for the appellant to show jurisdictional error.

Relevant Statutory Provisions

28    Section 499 of the Act relevantly provides:

499    Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

  …

29    Section 5 of the Act includes the following definition of “non-refoulement obligations”:

non-refoulement obligations includes, but is not limited to:

(a)    non-refoulement obligations that may arise because Australia is a party to:

(i)    the Refugees Convention; or

(ii)    the Covenant; or

(iii)    the Convention Against Torture; and

(b)    any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

The instruments referred to in s 5(a)(i)-(iii) of the Act are the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“the ICCPR”) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“the CAT”) respectively.

Direction 79

30    Paragraph 5 of Direction 79 outlines the contents of the Direction. Relevantly, para 5 states that Part B of the Direction:

Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application.

31    Part B includes various paragraphs including para 12 which relevantly states:

12.    Other considerations - visa applicants

(1)    In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)    International non-refoulement obligations;

    b)    Impact on family members;

    c)    Impact on victims;

    d)    Impact on Australian business interests.

12.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non­refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa)

(4)    where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5)    If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2    Impact on family members

(1)    Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3    Impact on victims

(1)    Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4    Impact on Australian business interests

(1)    Impact on Australian business interests if the non-citizen's visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

Ground 1

32    Ground 1 of the notice of appeal does not identify the inconsistencies that are said to exist between the Act and Direction 79. However, in the appellant’s written and oral submissions it was submitted that para 12.1 of the Direction is inconsistent with the Act in two respects.

33    First, the appellant submitted that the Direction defines “non-refoulement obligations” in a manner that is inconsistent with the Act. This was because para 12.1(1) refers to Australia’s non-refoulement obligations under the Refugees Convention, the CAT and the ICCPR whereas Australia has other non-refoulement obligations arising under various other conventions. According to the appellant, para 12.1(1) is to be interpreted as an exhaustive, and therefore inaccurate, statement of Australia’s non-refoulement obligations.

34    Second, the appellant submitted that para 12.1 of the Direction conflates “non-refoulement obligations” and “Australian’s interpretation of these obligations” and that this was also inconsistent with the Act because it expressly distinguishes between them.

35    Paragraph 12.1(1) does not, in terms, state that the conventions and covenant referred to are the only sources of Australia’s non-refoulement obligations. Nevertheless, in the appellant’s submission, the specific reference to the three instruments coupled with the absence of the word “including” or any other word or words that would indicate that the references to the instruments are non-exhaustive would lead a decision-maker to conclude, upon a fair reading of the Direction, that the instruments referred to are the only sources of Australia’s non-refoulement obligations.

36    According to the appellant, the Tribunal proceeded on the basis that the Direction was valid and that if, as he contended, para 12.1 was inconsistent with the Act, then this would amount to jurisdictional error because the Tribunal’s consideration of the appellant’s claims was informed by a mistaken understanding of the relevant law.

37    The appellant relied on the Full Court’s decision in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (“Ibrahim”). In that case the Full Court held that, when exercising the power under s 501BA(2) of the Act to set aside the revocation of a cancellation decision, the relevant decision-maker had made a jurisdictional error by declining to consider non-refoulement obligations because the decision-maker understood that Australia’s non-refoulement obligations under international treaties, such as the Refugees Convention, and the protection obligations under s 36(2) of the Act, would be considered in the context of an application for a protection visa.

38    The Full Court found that this reflected a misunderstanding of the law. For example, the Full Court observed that “the internal relocation principle” by which persons may be found to be refugees within the meaning of the Refugees Convention if they have a well-founded fear of persecution in one part of their home country, and it would not be reasonable to expect them to relocate to another part, could not be considered when determining an application for a protection visa under s 36 of the Act. The Full Court referred to s 5J(1)(c) of the Act which was said to have the effect of removing the internal relocation principle from consideration in the context of an application for a protection visa. Their Honours noted the decision of Rangiah J in BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 where his Honour said at [46]:

Following the amendments, in order to satisfy the “refugee” criterion, the person must have a “well-founded fear of persecution”, which, under s 5J(1)(c) of the Act, requires that the real chance of persecution “relates to all areas of a receiving country”. Section 5J(1)(c) represents a significant narrowing of the “internal relocation” principle. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [22], [78]-[81], the High Court held that a person would be excluded from refugee status under the Refugees’ Convention if, under all the circumstances, it would be reasonable to expect the person to seek refuge in another part of his or her country. The High Court held at [24] that what was “reasonable” depended upon the particular circumstances of the person and the impact upon that person of relocation within the country of nationality. Section  5J(1)(c) does not leave any room for consideration of the reasonableness of internal relocation. Under that provision, a person is not a “refugee” if there is some area of the receiving country where there is no real chance of the person being persecuted for reason of race, religion, nationality, membership of a particular social group or religion.

39    In Ibrahim the Full Court noted that counsel for the appellant had submitted that the internal relocation principle was potentially relevant to the appellant because of the claim that the appellant had a well-founded fear of persecution in the North of Nigeria. It does not appear to have been submitted on behalf of the Minister that the internal relocation principle was not relevant to the appellant’s case or that its relevance was purely hypothetical in nature. The Full Court, in finding that there had been a jurisdictional error in Ibrahim, accepted that the differences between Australia’s non-refoulement obligations under the Refugees Convention and the criterion to be applied under s 36(2) when read with s 5J(1)(c) of the Act were material to the appellant’s case.

40    In the present case the appellant submitted that the whole of the Direction is invalid if any part of it was not authorised by the Act. He submitted that it must follow that the Tribunal committed jurisdictional error in purporting to follow it.

41    However, the critical question is whether the Direction, or any relevant part of it, led the Tribunal into error in a manner that affected the exercise of its jurisdiction according to law: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31], Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]-[46], MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [32]-[39]. In our opinion there is no reason to think that the Tribunal was led into error or, even assuming that it was, that any such error could have in any way affected the exercise of the Tribunal’s jurisdiction.

42    Paragraph 12.1(4) of the Direction states that where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purpose of determining whether their visa application should be refused. In the present case it is not disputed that it was (and remains) open to the appellant to apply for a protection visa.

43    As the Tribunal noted, the appellant submitted that he would face significant harm if he were to be removed to Samoa, and that this could give rise to non-refoulement obligations. Having noted this claim, the Tribunal then referred to para 12.1(4) of the Direction and the Full Court’s decision in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56.

44    The Tribunal found that there was a risk of harm to the appellant if he were to return to Samoa. However, it went on to state that there was insufficient evidence to enable it to determine the degree of risk the appellant would likely face and that more evidence would be required in order to make such a determination.

45    The Tribunal went on to state that, although the appellant was at risk of harm if he returned to Samoa and that this weighed against a refusal to grant the visa, it would attach limited weight to this issue given the lack of evidence.

46    It follows that the Tribunal considered the appellant’s claim that he may suffer harm if he was returned to Samoa and the limited evidence supporting that claim, and took this into account when deciding whether or not to grant the appellant a permanent visa.

47    So far as concerns the differences between Australia’s non-refoulement obligations arising under an international treaty such as the Refugees Convention, and the criteria for the grant of a protection visa, the appellant did not identify any difference between the two that might be considered relevant to his claims. It was not suggested, for example, that the internal relocation principle was relevant to his claims; nor was the appellant able to identify any other non-refoulement obligation upon which he did rely, or could have relied, before the Tribunal.

48    Although the appellant’s counsel made some general references to other international treaties to which Australia is a party which impose non-refoulement obligations, it was not suggested that any of them apply in the case of the appellant or that the Tribunal committed any jurisdictional error by failing to have regard to them. Counsel did refer us to the International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 6 February 2007, 2176 UNTS 3 (entered into force 23 December 2010) (“the ICPPED”). However, Australia is not a party to the ICPPED. Other nations not party to it include the United States, Canada, the United Kingdom and New Zealand.

49    Article 2 of the ICPPED provides:

For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Article 16 of the ICPPED provides:

(1)    No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.

(2)    For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

50    Counsel for the appellant submitted that obligations under the ICPPED (and specifically the obligation contained in art 16) could form part of customary international law and, if so, that they would fall within the definition of non-refoulement obligations contained in s 5(b) of the Act.

51    Counsel for the appellant did not develop the argument that art 16(1) reflects an obligation under customary international law in either written or oral submissions. A review of the transcript shows that the only submission made on this point was that the Convention “has been signed by a very significant number of states, and … express[es a] non-refoulement obligation”.

52    The Full Court considered the principles governing the ascertainment of rules of customary international law in Ure v Commonwealth of Australia (2016) 236 FCR 458 at [29]. These principles are well established and require evidence of a general practice of States that is extensive and virtually uniform and which is accepted by States as law (opinio juris). The case advanced by the appellant falls far short of establishing that art 16(1) of the ICPPED reflects an obligation of customary international law.

53    In any event, art 16(1) refers to “substantial grounds” for believing that a person would be in danger of being subjected to enforced disappearance. The Tribunal did not accept that the appellant was at risk of serious harm if he was returned to Samoa: see the Tribunal’s reasons at [92]-[96].

54    In those circumstances it is not open to conclude that any failure to consider whether Australia owed the appellant a non-refoulement obligation to the effect of that contained in art 16 of the ICPPED under customary international law could have given rise to any jurisdictional error.

55    In our opinion, this case does not provide a suitable vehicle to consider the correctness of the appellant’s arguments concerning the validity of para 12.1(4) of the Direction. But assuming that the appellant is correct (we express no view on the point), we do not think this is a case where any jurisdictional error could arise.

56    The appellant also submitted that on the proper construction of para 12(1) of Direction 79, the various matters referred to in paras 12.1, 12.2 and 12.3 were, contrary to the view of the Tribunal, not matters that it was required to take into account when deciding whether to grant the appellant a visa. This was because, according to the appellant’s submission, para 12(1) refers to “cancel a visa” rather than “refuse a visa”.

57    As counsel for the appellant expressly conceded before the primary judge, para 12(1) mistakenly refers to cancellation of a visa rather than a grant of a visa. It is apparent from the clear language of para 5 that Part B of the Direction, including the whole of para 12, is concerned with the consideration of an application for a visa. The words “cancel a visa” as used in para 12(1) is an obvious drafting error. The appellant was right to concede this point before the primary judge.

58    From time to time courts are required to adopt an interpretation of legislation, sometimes referred to as a “rectifying interpretation”, that corrects what is an obvious drafting error: see, for example, Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 at 630, Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [9] per French CJ and Bell J citing with apparent approval a passage in Maxwell, On the Interpretation of Statutes 12th ed (1969) at 228 and the speech of Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586. In the present case this would involve interpreting the words “cancel a visa” in para 12(1) to read “refuse a visa”.

59    It is obvious from the heading to para 12(1) and the context provided by other relevant provisions in Part B that this is how the clause is to be interpreted. The appellant’s argument to the contrary has no merit. It is also inconsistent with the position adopted by the appellant before the primary judge.

ground 2

60    Paragraph 12(1) of the Direction required the decision-maker to take into account where relevant the impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour. At [90] of its reasons, the Tribunal said that “[t]here is no evidence before the Tribunal of any impact on victims if the visa were granted”.

61    The appellant submitted that the Tribunal erred in so holding. He submitted that the evidence showed that a decision to grant the appellant a visa would have had no impact on the victim. He further submitted that the Tribunal’s consideration of “impact on victims” should have weighed in favour of granting the appellant a permanent visa.

62    It is common ground that the evidence before Tribunal indicated that the victim of the appellant’s crimes had relocated from Samoa to New Zealand. In those circumstances the impact of any decision to grant a visa to the appellant on the victim was not a mandatory consideration because the victim was not a member of the Australian community.

63    Further, we are not satisfied that the appellant ever submitted to the Tribunal that para 12.3(1) raised a consideration that should weigh in his favour. We therefore consider that the Tribunal was entitled to treat this consideration as neutral in the sense that it weighed neither against nor in favour of the grant of a visa.

64    Finally, we think the Tribunal’s finding at [90] is, when fairly read, properly understood as referring to the absence of any evidence that the grant of the visa would have any adverse impact on any victim of the appellant’s crimes. The brevity of the Tribunal’s finding on the point no doubt reflects the fact that it was never suggested that the grant of the visa would have any such impact. In our opinion ground 2 lacks merit.

Ground 3

65    We have previously referred to [52] of the Tribunal’s reasons where it said that the Tribunal cannot, and should not, contradict or impugn a conviction by a court, nor the facts upon which that conviction was based. In support of that proposition, the Tribunal referred to Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. It is common ground that each of those decisions was concerned with convictions recorded and sentences imposed by Australian courts.

66    We have also referred to [53] of the Tribunal’s reasons in which it discusses the sentence imposed on the appellant. The Tribunal said that, since imprisonment is usually a last resort, the severity of the offences is reflected in the length of the sentence. The Tribunal then referred to observations made by a differently constituted Tribunal which noted that “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”.

67    The appellant submitted that those observations can only apply to sentences imposed by Australian courts and are not necessarily true of sentences imposed by foreign courts. The appellant submitted that the Tribunal committed an error of law by “treating a foreign judgment as if it is an Australian judgment” giving the former the deference and weight afforded to the latter.

68    The appellant submitted that imprisonment is not, or at least may not be, the punishment of last resort in other countries and that the severity of the appellant’s offences could not be determined by reference to the fact that a prison sentence of 24 months was imposed. According to the appellant, the Tribunal’s error in relying on the sentence imposed in assessing the severity of the appellant’s offences was compounded by the absence of any sentencing remarks to which decision-makers usually have regard in assessing the seriousness of an offence. The sentencing remarks of the Supreme Court of Samoa were not in evidence.

69    The appellant also submitted that the approach of the Samoan Supreme Court was very different to the approach that would be taken by an Australian court. He pointed to the fact that the 24 month prison sentence had been imposed in relation to one incident of violence perpetrated against an adult male colleague by an offender with no criminal record. He also relied on the fact that the sentencing court took matters into account that would not be taken into account if the appellant had been sentenced by an Australian court including his lack of involvement in the Church.

70    In his written submissions counsel for the appellant made clear that his client did not seek to dispute the fact of his conviction, or the sentence imposed, but what he did put in issue was the appropriateness of that sentence in light of the appellant’s conduct.

71    The first matter to note about the appellant’s submissions is that he did not seek to put in evidence before the Tribunal any sentencing remarks. In considering the appellant’s offending, the Tribunal was therefore left to consider the nature of the offences, the sentence imposed, and the account given by the appellant.

72    The second matter to note about the appellant’s submissions is that they give no weight to the explicit consideration the Tribunal gave to the appellant’s account of the circumstances in which the offences were committed, the absence of any prior convictions, that he had been encouraged to plead guilty by the police, and that he was unrepresented before the Supreme Court of Samoa.

73    The Tribunal noted that the appellant did not have a prior criminal record and accepted his evidence as to the circumstances in which the offences occurred. However, after considering all of the material before it (including the appellant’s account) the Tribunal found that those offences were very serious.

74    In describing the appellant’s offences as very serious the Tribunal did not suggest that an Australian court would have imposed the same or a similar sentence had he been convicted in Australia. Rather, it observed that the appellant’s conduct in Samoa would attract criminal penalties in Australia were the same offences committed here.

75    In our opinion the Tribunal took into account the circumstances of the appellant’s offending and concluded, independently of the sentence imposed by the Supreme Court of Samoa, that the appellant had committed a violent assault in which he inflicted grievous bodily harm on his unarmed victim by striking him with a metal pipe.

76    The third matter to note is that the offences for which the appellant was sentenced were not the only matters relied upon by the Tribunal when considering the risk to the Australian community.

77    As the Tribunal outlined at [61] of its reasons, not only had the appellant been convicted of serious criminal conduct, he had engaged in further serious conduct by not serving his prison sentence, and by engaging in what the Tribunal characterised as “a pattern of ongoing deception of the relevant Australian authorities” which the Tribunal said “must be viewed extremely seriously”. In light of those matters the Tribunal considered that the risk to the Australian community weighed heavily in favour of refusal of the appellant’s application for a permanent visa.

78    It is true that the Tribunal stated at [53] of its reasons that imprisonment is usually a last resort and that the severity of the appellant’s offences was reflected in the length of the sentence imposed on him. We accept that this approach to sentencing does not necessarily reflect the approach taken in all jurisdictions. However, this is acknowledged by the Tribunal by its use in [53] of the word “usually”.

79    Similarly, the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts. Some courts may apply different principles that lead them to impose different sentences than would be expected were the matter dealt with by an Australian court. This may be due to different statutory penalty regimes, the existence of mandatory minimum sentences, a “two-stage” rather than instinctive synthesis approach to sentencing, prescribed guilty plea discounts, or different levels of prosecutorial discretion. When considering the approaches taken to sentencing by foreign courts, it may therefore not be helpful to make generalised statements.

80    In any event, we are not persuaded that any error of the kind postulated by ground 3 could have had any impact on the outcome of the review. It is clear from the Tribunal’s reasons that it was independently satisfied that the appellant’s criminal conduct was serious and that, when regard was had to that conduct and the subsequent conduct to which the Tribunal referred, it was satisfied that the protection and the expectations of the Australian community outweighed all other relevant considerations. In our opinion the appellant has failed to establish that any error of the kind identified in ground 3 would, even if made out, amount to a jurisdictional error.

Disposition

81    Each of grounds 1 to 3 in the appellant’s notice of appeal relates to a matter that was not raised before the primary judge. The appellant has not provided any explanation for his failure to advance any of those grounds below except to point to a change in counsel. In the absence of any other explanation, and having regard to their lack of merit, we think the appropriate course is to refuse the appellant leave to rely on any of his three grounds of appeal. In the result, the appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal as taxed or agreed.

Associate:

Dated:    6 August 2021

REASONS FOR JUDGMENT

CHARLESWORTH J:

82    I have had the benefit of reading the reasons for judgment of Nicholas and Yates JJ in draft. I agree that there should be no grant of leave to introduce the three grounds of appeal and that, accordingly, the appeal must be dismissed.

83    For the three reasons given below, I would refuse to grant leave to introduce the new arguments, even if it could be shown that they have reasonable prospects of success.

84    First, as has been identified, the appellant was legally represented in the proceedings at first instance. No explanation has been given for the failure to advance the arguments before the primary judge, other than to say that there has been a change of counsel. It is plainly not in the interests of justice to entertain arguments in circumstances where the arguments have previously been considered by a party’s legal representative and where a decision has been made not to advance them. Whether or not that has or has not occurred is a question of fact. In the absence of any evidence bearing on the topic I am not prepared to draw an inference that the arguments were not previously considered. There are no obvious indications of incompetency or other concerns affecting the quality of the appellant’s legal representation in the proceedings before the primary judge. It is not otherwise in the interests of justice to permit an argument to be raised merely because different counsel may adopt a different approach to the same materials, even if the matter be one involving a claimed fear of harm. To the contrary, the practice of incoming counsel abandoning all that has gone before and introducing a wholly new case at the appellate level is to be discouraged.

85    Second, the jurisdictional errors alleged in the three proposed grounds do not raise issues of general significance to any other case:  cf Lobban v Minister for Justice (2016) 244 FCR 76.

86    Third, it is a requirement of litigation relating to a migration decision that the litigation has reasonable prospects of success, in all cases where the litigation is commenced by a lawyer:  Migration Act 1958 (Cth), s 486I. Demonstration of an arguable case is of course necessary. But it cannot be regarded as a sufficient base warranting leave to run a new case.

87    If I am wrong in identifying these reasons as sufficient of themselves to warrant the refusal of the grant of leave, then I would refuse leave for the additional reason that the grounds lack merit. I agree with all that has been said by Nicholas and Yates JJ in that regard.

Associate:

Dated:    6 August 2021