Federal Court of Australia

Uolilo v Minister for Home Affairs [2020] FCA 1135

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

3.    The parties confer on the appropriate orders to deal with the statement of claim filed in this proceeding and submit draft short minutes within seven (7) days.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    The power to grant visas to non-citizens is vested in the Minister by s 65 of the Migration Act 1958 (Cth). After considering a valid application for a visa, the Minister is obliged to grant the application if the Minister is satisfied that certain conditions set out in the section have been met and, if not, to refuse to do so. Regardless, s 501(1) of the Act entitles the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test erected by subs 501(6). Amongst other things, that subsection provides that a person does not pass the character test if the person has a substantial criminal record as defined in subs (7). That includes a person who has been sentenced to a term of imprisonment of 12 months or more (para (7)(c)). These powers may be delegated (s 496) and decisions of the Minister’s delegate may be reviewed in the Administrative Appeals Tribunal (s 500). The Minister may give written directions about the exercise of those powers to a person or body having powers under the Act and, if such directions are given, the person or body must comply with them (s 499).

2    This is an application for review of a decision of the Tribunal to affirm a decision by a delegate of the Minister to refuse to grant a partner visa. The matter has a lengthy history. The decision under review is the third Tribunal decision dealing with the visa application. The first overturned a decision of a delegate to refuse the visa. The second affirmed a second delegate’s decision but the decision was quashed in this Court. The third affirmed another delegate’s decision.

Background

3    The applicant, Valufitu Fiu Uolilo, is a Samoan national. He has lived in Australia since 31 August 2014.

4    On 27 January 2012, the applicant married an Australian citizen and on 26 August 2013, sponsored by his wife, he applied to the Minister for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa. The former is a temporary visa, the latter a permanent one. Both enable the spouse or “de facto partner” of an Australian citizen or permanent resident (or eligible New Zealand citizen) to live in Australia. The temporary visa is issued pending the making of a decision on the permanent visa and an application for the temporary visa must be made at the same time and place as the application for the permanent visa (see Migration Regulations 1994 (Cth), Sch 1, cl 1220A(3)(c)).

5    On 22 May 2014 an officer at the Australian Embassy in Samoa requested that a Penal Clearance Certificate be obtained from the Samoan authorities. Five days later the applicant submitted to the Australian authorities a certificate, purporting to be from the Ministry of Police and Prisons, Samoa Police Headquarters, and a sealed police clearance report, purportedly signed on behalf of the Commissioner of Police and Prisons, stating that the applicant had passed the records of verification conducted by the Samoan Police, with “no [c]riminal or [t]raffic offences”.

6    On 9 July 2014 the applicant was granted a Class UF visa.

7    On 13 January 2013, however, before the applicant forwarded the certificate and police clearance report to the Australian authorities, the applicant had been convicted in the Supreme Court of Samoa of two criminal offences — “grievous bodily harm” and “armed with dangerous weapon” — and was sentenced to two years imprisonment for the first offence and nine months for the second offence, to be served concurrently.

8    On 31 August 2014, having served seven months of his two-year sentence, the applicant escaped or absconded from prison, and flew out of 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.

9    On 12 September 2014 the Department of Immigration and Border Protection was advised that the applicant had escaped from gaol and travelled to Australia. A Penal Clearance Certificate was obtained from the Ministry of Police and Prisons, Samoa, which disclosed his previous convictions and sentences.

10    An email dated 17 October 2014 from the officer in charge of the Samoan Transnational Crime Unit/Interpol APIA confirmed the convictions and sentences, described the applicant as a “wanted fugitive”, and stated that it was the Ministry’s position that he be returned to Samoa to serve the rest of his sentence and any assistance that the recipient could provide would be “greatly appreciated”.

11    On 25 August 2016 the Department invited the applicant 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, in which event he could fail to satisfy Public Interest Criterion (PIC) 4020(1) (contained in Sch 4 Pt 1 of the Regulations) and the application might be refused.

The first refusal decision

12    On 4 October 2016 the Class BC visa was refused by a delegate of the Minister on the ground that the applicant did not meet PIC 4020 because he had provided a bogus document to the Department, being the “Penal Clearance Certificate” from Samoa, dated 27 May 2014, which did not disclose the two Samoan convictions.

13    That decision was set aside by the Tribunal on 12 October 2017.

14    The Tribunal was satisfied that the information was false or misleading at the time it was given. It did not accept that the applicant did not cause the false information to be given, as he had claimed. It noted that the applicant had told the Tribunal he knew the criminal “charges” would have an impact on his application for a partner visa and that he was concerned about what would be contained in the “police clearance certificate”. The Tribunal did not regard it as plausible that a person who had been convicted of a criminal offence and served a gaol sentence for that offence at the time the certificate was requested would have been given a clean certificate without some “human interference”. Nevertheless, the Tribunal decided that there were compassionate or compelling circumstances that affected the interests of the applicant’s wife and children that justified the grant of the visa so that the requirements of PIC 4020(1) should be waived. Accordingly, the Tribunal remitted the visa application for reconsideration with a direction that the applicant meets PIC 4020.

The second refusal decision

15    On 27 March 2018 another delegate of the Minister decided to refuse to grant the visa under s 501(1).

16    The applicant applied to the Tribunal for a review of this decision and, on 29 June 2018 the then solicitors for the applicant submitted to the Tribunal the “Applicant’s Statement of Facts, Issues and Contentions”, two statutory declarations, three letters, several newspaper articles, and a report published by Freedom House.

17    On review, the Tribunal, then constituted by Senior Member Puplick, determined that the delegate was correct to refuse the application. Although it found that there were “weighty” considerations for setting aside the decision, it decided that those factors were outweighed by considerations favouring the affirmation of the delegate’s decision. The weightiest of those considerations was the applicant’s escape or abscondment from lawful custody.

18    For a variety of reasons the Tribunal’s decision was quashed by this Court and a writ of mandamus issued, requiring the Tribunal to determine the application for review according to law: see Uolilo v Minister for Home Affairs [2019] FCA 336, a judgment to which I shall return later in these reasons.

The remittal

19    After the writ of mandamus was issued, the applicant furnished the Tribunal with a number of additional documents. Amongst them was his own statutory declaration (his third) dated 2 August 2019. In that document he raised concerns for his safety in Samoa. On this subject subjects he declared (without alteration):

It's not safe for me to return to Samoa …

The police department in Samoa is so corrupted as I am one of the many victims. While I was in prison they released me {the police} everyday to go outside in the community to work and the money that I earned from working in the community I had to give to the police officer in charge and his family. I was continually assaulted, verbally abused and threaten to be killed if I ever say a word to somebody or talk to the media.

…

If I end up in Samoa, my life will be over. They will kill me, and do anything to get rid of me so they can cover up their corruption, just to save themselves from what they have done to me.

…

I kindly asked you and your department to please reconsider my plea as my life is not safe if you send me back to Samoa and could not bear to leave my wife to care for our kids on her own like she already has been.

20    In her statutory declaration made on 3 August 2019 the applicant’s wife made a similar plea:

I do believe if my husband goes back to Samoa, I know for sure those officers will do something really stupid to him, like kill him because they know very well if my husband tells the story, then they will be in so much trouble …

21    It appears that no such claims had previously been made by either to the Department or the Tribunal.

22    Despite the new claim, no new or revised statement of Facts, Issues or Contentions was submitted.

The Ministerial Directions binding on the Tribunal

23    From time to time, Ministerial Directions have been given under s 499 of the Act with respect to visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. At the time of the first Tribunal hearing, Direction no. 65 applied. At the time of the second Tribunal hearing, Direction no. 65 had been revoked. It was replaced by Direction no. 79, which was given on 20 December 2018 and commenced on 28 February 2019.

Direction no. 79

24    In exercising the discretion to refuse to grant a visa conferred by s 501, Direction no. 79 required decision-makers to take certain matters into account where relevant to the individual case. Considerations for visa applicants and visa holders are listed separately. Part A deals with decisions to cancel a visa, Part B with decisions to refuse a visa, and Part C with decisions on whether to revoke the cancellation of a visa.

25    Paragraph 8 of Direction no. 79 explains that this separation “recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved”. It also states that in the application of the considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”. It relevantly points out that the considerations may weigh in favour of, or against, refusal. It instructs decision-makers that primary considerations should generally be given greater weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.

26    The primary considerations appear in para 11. They are: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Other considerations are dealt with in para 12. Paragraph 12 relevantly provides as follows:

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 non-refoulement 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.

27    Despite the chapeau in para 12(1) — “In deciding whether to cancel a visa” — it is plain that para 12 is directed to decisions about whether to refuse a visa. Both active parties to this proceeding accepted as much. The same error appeared in Direction no. 65. Paragraph 10, which is in Pt A, has already listed the other considerations that apply to visa holders. The considerations listed in paras 10(1) and 12(1) are not identical. Paragraph 10 requires decision-makers to take into account the “strength, nature and duration of ties” and the “extent of impediments if removed” and it does not include “impact on family members”. But paras 10.1 and 12.1 are identical.

Direction 75

28    Direction 75 commenced on 6 September 2017. It relevantly provides that:

In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.

1)    The decision-maker must first assess the applicant's refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision maker finds the claims do not meet the refugee or complementary protection criteria, the decision maker must refuse to grant the visa.

2)    Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).

3)    Where the Protection visa applicant has met the complementary protection criteria in 36(2) (aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

a)    Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

4)    If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501

5)    The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

The decision under review

29    The Tribunal in this case was constituted by Deputy President Pascoe.

30    It was common ground that, because of the sentence he had received in Samoa, the applicant did not and could not satisfy the Tribunal (standing in the shoes of the Minister) that he passed the character test. Thus, the only question for the Tribunal was whether it should exercise the discretion to refuse the Class BC visa.

31    The Tribunal considered that the following factors weighed in favour of refusal:

(1)    the protection of the Australian community, because the offences of which the applicant had been convicted were “very serious”; by failing to complete his prison sentence he had engaged in “further serious conduct”; he had engaged in “a pattern of on-going deception of the relevant Australian authorities”, which had to be “viewed extremely seriously”; and he had to be considered a risk to the Australian community ([44]–[61]); and

(2)    for much the same reasons, the expectations of the Australian community ([71]–[79]).

32    The Tribunal considered that the following factors weighed in favour of granting the visa:

(1)    the best interests of the applicant’s four biological children and one of his stepchildren, and placed “very significant weight” on this consideration due to the significant and ongoing harm to the children if the applicant returned to Samoa ([62]–[70]);

(2)    the detrimental impact of the applicant’s removal to Samoa on his wife and children ([86]–[89]);

(3)    the risk of harm to the applicant if he returned to Samoa ([92]–[97]); and

(4)    the applicant’s potential health needs where the seriousness of his then current stomach infection could not be determined ([98]–[103]).

33    Taking into account all the evidence, and having regard to the various matters to which it had referred, the Tribunal concluded that the primary considerations of protection of the Australian community and the expectations of the Australian community outweighed the other considerations.

34    Two aspects of the Tribunal’s decision are relevant to the present application. One concerns the way the Tribunal dealt with Australia’s non-refoulement obligations. The other concerns the Tribunal’s broader consideration of the risk of harm.

35    In relation to the first matter, the Tribunal observed that the applicant submitted that he would face significant harm if he were to be removed to Samoa because the manner in which he left Samoa had attracted media attention which shed light on systematic corruption in the Samoan police and prison systems. It also noted his submission that this could give rise to non-refoulement obligations.

36    Based on para 12.1(4) of Direction no. 79, the remarks of the Full Court in Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 at [61], and Direction 75, however, the Tribunal concluded that it was not necessary to determine whether the applicant was owed non-refoulement obligations and did not do so.

37    In Le at [61] the Full Court (Allsop CJ, Griffiths and Wigney JJ) said that, in determining whether or not to exercise the powers in s 501(1) or (2), 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 and the consideration of that application must involve regard being paid to the prospect of indefinite detention if the application were refused, “Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations”.

38    The Deputy President observed (at [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.

39    In relation to the second matter, the Deputy President said this, under the heading “Risk of harm upon return to Samoa”:

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.

The present application

40    The originating application, filed on 13 January 2020, sought the following relief: a declaration that the decision of the third Tribunal was made contrary to law; a writ of certiorari to quash the decision; a writ of mandamus requiring the Tribunal to re-determine the matter; a writ of prohibition to restrain the Minister or his employees, officers, delegates or agents from acting upon, or giving effect, to the decision; and an order for costs in his favour. That application contained two grounds. Omitting the particulars, those grounds read as follows:

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

1.    The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant principles, or failed to given genuine, proper or realistic consideration to the applicant's claims or there was an insufficient logical or evidentiary basis for the Tribunal to find at [104] that the “primary considerations of protection of the Australian community and the expectations of the Australian community outweigh other considerations” when declining to grant at [105] the application for a Partner (Migrant) (Class BC) visa pursuant to section 501 (1) of the Migration Act 1958 (Cth).

Ground 2: 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

2.    The Tribunal erred from [10]; [54]-[55] and specifically at [61] and [74]; and ultimately at [78] of the decision record, by conflating the applicant's “release” from the prison in Samoa, for which he has not been charged nor convicted under Samoan law, with the applicant's substantial criminal record under section 501(7)(c) of the Migration Act 1958 (Cth).

41    But these grounds were abandoned.

42    On 5 June 2020 an amended originating application was filed. It added claims for a writ of habeas corpus and damages. It also raised additional grounds. At the same time a statement of claim was filed seeking, as against both the Minister and the Commonwealth of Australia, a declaration that the applicant’s detention from 24 May 2018 was unlawful; relief in the nature of a writ of prohibition restraining the Minister, his employees, officers, delegates or agents from acting upon, or giving effect to, the decision to detain him from that date; and damages for false imprisonment. The alleged basis for the cause of action was that the decision of the Minister’s delegate made on 4 October 2016, which was said to have been “upheld” by the Tribunal on 16 December 2019, was made contrary to law so that the decision to refuse the application for a partner visa made on 4 October 2016, the (consequential) cancellation of the applicant’s bridging visa on 27 March 2018, and the applicant’s detention from 24 May 2018 were all unlawful.

43    On 2 July 2020 I effectively imposed a temporary stay of the proceeding the subject of the statement of claim pending the disposition of the present application.

44    On 3 July 2020 the applicant filed a yet further amended originating application for review.

45    Six grounds of review were included in this document but three of them were abandoned. Those that remain are grounds 3, 4 and 6. These grounds allege that:

(1)    the Tribunal erred in finding (at [85]) that Australia’s non-refoulement obligations were irrelevant (ground 3);

(2)    the Tribunal failed to “consider entirely” the impediments to the applicant and the risks of harm if he were returned to Samoa “outside the concept of non-refoulement and the international obligations framework” (ground 4); and

(3)    the Minister erred by failing “to exercise jurisdiction regarding the extradition of the applicant to Samoa within a reasonable time and the arbitrary and indefinite detention of the applicant, contrary to law” (ground 6).

46    The Minister consented to a grant of leave with respect to grounds 3 and 4 but not ground 6, which is the ground upon which the applicant claimed he was entitled to a writ of habeas corpus.

Should leave be granted to rely on the new grounds of review?

47    I grant the applicant leave to rely on grounds 3 and 4 but I refuse leave to rely on ground 6. Ground 6 is barely intelligible. To the extent that sense can be made of it, it appears to be misconceived.

48    First, there is no evidence of an extradition request. The evidence was that the Samoan police would appreciate assistance in returning the applicant to Samoa.

49    Second, the email from the Samoan police is a distraction. I was not taken to any material to suggest that the applicant has been detained at any time because of it or its contents.

50    Third, the applicant did not point to the legal foundation for the proposition that the Minister had any jurisdiction regarding extradition. In his submission to the delegate his representatives argued that extradition was a matter for the Attorney-General. Indeed, the power to direct a magistrate or eligible Federal Circuit Court Judge to cancel an extradition arrest warrant is vested in the Attorney-General: Extradition Act 1988 (Cth), s 12(3). It is also the Attorney-General who determines whether or not a person is to be surrendered to an extradition country in relation to the extradition offences: Extradition Act, ss 15B, 22. It is the Attorney-General who issues a notice of request for extradition: Extradition Act, s 16. And it is the Attorney-General who has the power to issue surrender warrants: Extradition Act, s 22. The portfolio responsibility for extraditions, in contrast to deportations, rests with the Attorney-General, not the Minister.

51    Fourth, on the material before the Court, the applicant’s detention was not arbitrary. While the Minister bears the ultimate legal burden of proving that the applicant’s detention is lawful (see, for example, Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [39] per Kiefel CJ, Keane, Nettle and Edelman JJ, as Anderson J explained in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [103]–[109], the evidential burden shifts between the parties.

52    The applicant must first prove that the named respondent has the ability to secure his or her release (step 1). If that is established, then the respondent carries the burden of presenting a prima facie justification for the detention (step 2). For this purpose documentary evidence is not required. Prima facie justification may come in the form of a statutory power to restrain the applicant. Thus, where the applicant’s detention is apparently lawful, because he is an “unlawful non-citizen” within the meaning of the Act, and “ss 189 and 196 of the Act are lawful authority to detain an unlawful non-citizen for the purpose of lawful removal from Australia as soon as that becomes practicable”, the applicant bears “at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia”: Plaintiff M47 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ). If the respondent offers that prima facie justification, the applicant carries an evidential onus to raise a prima facie case that the detention is unlawful (step 3). If that evidential onus is satisfied, the respondent must discharge the ultimate legal burden of proving the lawfulness of the detention (step 4).

53    This case falls at the third step. He was unable to point to any evidence to raise a prima facie case that his detention is, or has been, unlawful. The only reasonable inference available from the material before the Court is that at all material times the applicant has been detained as a result of the delegate’s refusal on 27 March 2018 to grant his application for a partner visa. In his submissions, the applicant’s counsel, Mr Williams, asserted (without reference to his source) that the applicant had been in detention ever since the delegate made his decision. The evidence, however, is that the applicant was only notified of the decision on 24 May 2018 and that he was taken into immigration detention that day. It was common ground that he has remained in immigration detention ever since.

54    The applicant’s detention was the inevitable result of the delegate’s decision. The refusal to grant the partner visa meant that the applicant’s bridging visa was taken to have been cancelled (see para 501F(3)(a)). The refusal to grant the partner visa and the cancellation of the bridging visa rendered the applicant an “unlawful non-citizen” (see ss 13–15). Section 189(1) relevantly provides that “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”. An officer includes an officer of the Department (see s 5). Direct evidence of an officer’s state of mind is not required in a case such as this; the matter can be determined by inference from the surrounding circumstances: Commonwealth of Australia v Okwume (2018) 263 FCR 604 at [151] (Besanko J); at [325] (White J); McHugh at [135], [147] (Anderson J); Guo v Commonwealth of Australia (2017) 258 FCR 31 at [68], [80] (Jagot J). Since the effect of the delegate’s decision to refuse to grant the partner visa was to render the applicant an “unlawful non-citizen”, “an officer could and would have formed the reasonable suspicion referred to in s 189(1) …”: Fernando v Commonwealth of Australia (2014) 231 FCR 251 at [81] (Besanko and Robertson JJ). “Detain” is defined in s 5 of the Act to include to “keep, or cause to be kept, in immigration detention”. As Crennan J observed in Plaintiff M168/10 v Commonwealth of Australia [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 at [34], this provision and the judgments in Ruddock v Taylor (2005) 222 CLR 612 support the proposition that the power to detain includes the power to continue to detain.

55    Section 196 relevantly provides as follows:

Duration of detention

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

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

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

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

(c)    he or she is granted a visa.

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

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

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

…

(Emphasis added.)

56    The applicant’s detention has been prolonged because of his applications to the Tribunal to review the delegates’ decisions and the legal consequences of those decisions. The effect of s 196(3) is that the Court may not order the applicant to be released from detention at this point in time.

57    Finally, there is at least doubt about whether the Court has jurisdiction to review the decision to detain the applicant.

58    In McHugh at [65]–[87] Anderson J held that s 476A(1) of the Act precludes a direct attack on the lawfulness of a decision to detain a person in immigration detention. Section 476A(1) limits the original jurisdiction of the Court in relation to “a migration decision” to certain classes of cases. A decision to detain a person does not fall into any of those classes. In McHugh his Honour held at [85]–[87] that, although collateral challenges to the lawfulness of immigration detention can be brought in the Court’s original jurisdiction through a claim in tort for false imprisonment, misfeasance in public office, or negligence, s 476A(1) removes the Court’s original jurisdiction to hear and determine an application for habeas corpus.

59    The applicant relied on an earlier decision to the contrary. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394, an ex tempore judgment in response to an urgent application, Wigney J held at [63] that the detention of an unlawful non-citizen under the Act does not require a “decision”, relying on the judgment of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. His Honour held that the act of detaining, or continuing to detain, a person does not constitute a “migration decision” for the purposes of the jurisdictional limitation in s 476A(1). Anderson J considered that Al Masri did not reflect the current state of the law because it had been overtaken by two events. One was the High Court’s decision in Ruddock v Taylor. The other was the insertion into the Act in 2005 of s 476A, which extends the definition of “decision” in s 474(3). Consequently, Anderson J reasoned at [79] that Al Masri does not now support the position taken in PDWL.

60    Neither in written submissions nor oral argument did Mr Williams address the reasoning in McHugh or seek to justify PDWL. He merely asserted that PDWL should be preferred.

61    That leaves grounds 3 and 4.

Did the Tribunal err in finding that Australia’s non-refoulement obligations were irrelevant (ground 3)?

62    The short answer to this question is that the allegation is based on a false premise. The Tribunal did not find that Australia’s non-refoulement obligations were irrelevant. Rather, it stated that it was not necessary to consider them.

63    But ground 3 cannot be dismissed on this basis because the applicant’s argument went beyond its terms. In substance, his argument was that the Tribunal fell into jurisdictional error because it failed to take into account Australia’s non-refoulement obligations to him when it was bound to do so.

64    The applicant submitted that the Tribunal fell into jurisdictional error in the following respects:

(1)    by “misappl[ying] or fail[ing] to take into consideration” paras 12.1(5) and 12.1(6), when they were both “relevant and mandatory”;

(2)    by finding that it was unnecessary to determine whether the applicant was owed non-refoulement obligations as it was open to the applicant to apply for a protection visa;

(3)    by failing to understand that the applicant was prevented by s 48A of the Act from applying for a protection visa unless the Minister were to determine that s 48A did not apply to him;

(4)    by failing to consider that a future application for a protection visa might be refused purely on character grounds under PIC 4001(a) or (b) and the Minister or his delegate would never consider the criteria in paras 36(2)(a) and (aa), nor would the discretion under s 501(1) be engaged;

(5)    by failing to consider that the application could again be refused by the Minister under ss 501(2) or 501(3) on the ground that the applicant does not satisfy the character test;

(6)    by failing to consider the operation of s 189, which requires the detention of an unlawful non-citizen who is in the migration zone, and s 196, which requires such a person to be kept in immigration detention until removed from Australia or granted a visa; and

(7)    by failing to consider the operation of s 198 in the context of s 197C.

65    In substance, these submissions raised the following issues:

(1)    whether the Tribunal was bound to consider non-refoulement obligations when they were raised by the applicant as an issue;

(2)    whether the Tribunal erred by failing to take into account paras 12.1(5) and 12.1(6) of Direction no. 79;

(3)    whether the applicant was prevented by s 48A from applying for a protection visa;

(4)    whether the Tribunal erred by failing to consider that a future application for a protection visa might be refused purely on character grounds; and

(5)    whether the Tribunal erred by failing to consider the prospect of indefinite detention.

Was the Tribunal bound to consider Australia’s non-refoulement obligations when they were raised by the applicant as an issue?

66    The first reference in any document that the applicant feared harm in Samoa appeared in the applicant’s statutory declaration of 2 August 2019.

67    In his statement of Facts, Issues and Contentions, filed with the Tribunal on 29 June 2018, upon which he apparently relied in both the second and third Tribunal hearings, the applicant made no claim that he was at risk of harm that would trigger Australia’s non-refoulement obligations. Indeed, he disavowed such a claim. After referring to the secondary criteria in para 12(1) of Direction no. 65, the first of which was “international non-refoulement obligations”, the Applicant’s Facts, Issues and Contentions contained the following unequivocal representation (at [68]):

There are no non-refoulment (sic) obligations

68    That representation was consistent with every document supplied to the Department before the decision by the Tribunal to affirm the second refusal decision. In none of those documents did the applicant represent that he feared harm if he were to return to Samoa, let alone identify any basis upon which it could be said that Australia owed him non-refoulement obligations.

69    As Robertson J observed in his judgment in Uolilo (2019) at [57], fear of harm in Samoa only emerged as an issue as a result of a finding made in the decision of Senior Member Puplick. The Senior Member deferred consideration of the matter because he reasoned that the question would be considered in connection with “the extradition request”. His Honour discussed that Tribunal’s approach and finding at [57]–[58]:

[57]    [A]lthough 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.

70    His Honour held (at [59]–[65]) that, having found as a fact that there was a threat that the applicant might suffer adverse consequences were he to be returned to Samoa, and having decided that the Tribunal should consider the matter, it fell into jurisdictional error. By postponing consideration, and therefore not considering a factor it found to be relevant to the exercise of its discretion and to which it said it would attach equal weight to other criteria, his Honour held that the Tribunal misunderstood and failed to complete the jurisdictional task.

71    The applicant relied on his Honour’s reasons in the present application.

72    Yet, none of these remarks was directed to the consideration of Australia’s non-refoulement obligations. Senior Member Puplick noted that no such obligations had been drawn to the Tribunal’s attention. In those circumstances, and in view of his belief that Australia had no formal extradition treaty with Samoa, the Senior Member did not regard the matter as relevant. Presumably that is why neither he nor Robertson J referred to para 12.1(4) of Direction no. 65, the then binding Ministerial Direction, which was in identical terms to para 12.1(4) of Direction no. 79, which was binding on the Tribunal in the decision under review in this proceeding.

73    Although no amended statement of Facts, Issues and Contentions was given to the Tribunal on the third review, it is clear that the issue of non-refoulement was raised with it. Unlike his predecessor, however, the Deputy President did not embark on a consideration of the issue which he did not complete. Rather, he did not consider whether Australia owed non-refoulement obligations to the applicant because it was open to the applicant to apply in Australia for a protection visa; in these circumstances Australia’s non-refoulement obligations were not mandatory considerations; para 12.1(4) of Direction no. 79 provides that “it is unnecessary” to make such a determination for the purposes of deciding whether to refuse the visa application; and Direction 75 requires the decision-maker to assess whether protection obligations are owed to an applicant for a protection visa before any character concerns are considered.

74    While para 12.1(4) of Direction no. 79 did not preclude the Tribunal from considering the question, it directed the Tribunal that it was unnecessary for it to do so where, as here, the applicant is able to make a valid application for another visa. In the absence of any challenge to the validity of para 12.1(4) of Direction no. 79, I cannot see how the Tribunal can be said to have fallen into jurisdictional error by applying the terms of the Direction it was bound by law to follow.

Did the Tribunal err by misapplying or failing to consider paras 12.1(5) and (6) of Direction no. 79?

75    The applicant also submitted that the Tribunal fell into jurisdictional error by “misappl[ying]” or failing to take into account the two subsequent paragraphs. It is true that the Tribunal did not take paras 12.1(5) and 12.1(6) into account. In not doing so, however, it made no error.

76    Paragraphs 12.1(5) and (6) were irrelevant. They only apply to applications where the visa being considered for refusal is a protection visa. Only then is the Tribunal bound to “seek an assessment of Australia’s international treaty obligations” and “carefully weigh” any non-refoulement obligations against the seriousness of the applicant’s criminal record or “other serious conduct”. In the present case, the visa under consideration for refusal was not a protection visa, but a partner visa. “Protection visa” is defined in s 35A of the Act to cover certain kinds and classes of visas. That definition does not include any kind of partner visa.

Was the applicant prevented by s 48A from applying for a protection visa?

77    The proposition that the applicant was prevented by s 48A from applying for a protection visa is as misguided as the applicant’s previous argument. Subject to s 48B, which gives the Minister the power to determine that the section does not apply if he thinks it is in the public interest to do so, s 48A only prevents a non-citizen who has made one or more applications for protection visas while in the migration zone from making a further application for a protection visa. There is no material before the Court to indicate that the applicant has ever made an application for a protection visa while in the migration zone or at all.

Did the Tribunal err by failing to consider that a future application for a protection visa might be refused purely on character grounds?

78    The proposition that the Tribunal erred by failing to consider that a future application for a protection visa might be refused on character grounds so that the question of refoulement might never be considered was based on the judgment of the majority in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 438.

79    In BCR16 Bromberg and Mortimer JJ held that a decision made personally by the Assistant Minister not to revoke a mandatory visa cancellation, being a decision under s 501CA(4)(b)(ii) of the Act, was affected by jurisdictional error. Put shortly, their Honours’ reasons were as follows:

(1)    The Minister had assumed that non-refoulement obligations would necessarily be considered as part of any protection visa application the appellant might make when there was nothing in the Act to prevent such an application being refused without consideration being given to any non-refoulement obligations. That was because the Minister could choose to consider another criterion first, such as PIC 4001 or the security criteria in s 36(1B) and (1C), find that it was, or they were, not satisfied, and refuse the application on that basis (at [44]–[46]).

(2)    The tasks involved in decision-making under s 501CA(4) and s 65 are quite different. The exercise of the revocation power in s 501CA(4) involves the exercise of a discretion, whereas s 65 requires the Minister or his delegate to be satisfied of certain criteria and non-satisfaction requires that the visa be refused (at [48]–[49]).

(3)    On the facts, given the Minister’s findings about the applicant, it was likely that a future protection visa application would be decided on character grounds and any non-refoulement obligations would not be considered (at [52]).

80    The applicant submitted that the same error was made in the present case.

81    There are two fundamental problems with this submission.

82    First, BCR16 concerned a decision by the Assistant Minister who was not bound by directions made under s 499. It also concerned a decision made under a different provision of the Act. In the case of a decision under s 501CA(4), in contrast to one made under s 501(1) where the person in question fails to satisfy the Minister that he or she passes the character test, the Minister may only exercise the relevant power if satisfied that there is “another reason” to do so. As to the nature of the power under s 501CA(4)(b)(ii), see, in particular, Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [64]–[79] (Colvin J, with whom Reeves J agreed at [1]).

83    For the same reasons, DOB18 v Minister for Home Affairs (2019) 269 FCR 636 (FC), upon which the Minister relied in his submissions, is not to the point and it is unnecessary to consider the significance of the later judgment in Ali v Minister for Home Affairs [2020] FCAFC 109 in which a differently constituted Full Court distinguished DOB18, in part on an apparently mistaken basis.

84    On the other hand, the principles outlined by the Full Court in Le at [61], upon which the Tribunal relied, are directly relevant, since they were concerned with the same point in the context of the very power the Tribunal was exercising in the present case. Yet, the applicant failed to refer to them, let alone attempt to overcome them.

85    Second, the applicant’s submission ignored Direction 75, which was introduced after BCR16 and, as Yates J observed in FBW18 v Minister for Home Affairs [2019] FCA 1878 at [28], was an apparent response to the majority’s decision in that case. It also ignored the Tribunal’s observations about Direction 75. It will be recalled that the Tribunal noted that Direction 75 provides that if the applicant were to apply for a protection visa, the decision-maker would be required to consider whether the applicant was owed protection obligations before any character concerns were addressed. The applicant did not submit that the Tribunal’s observations about Direction 75 were wrong. It is true that Direction 75 is not binding on the Minister. It is also true that, regardless of the practice, there is no guarantee that any application the applicant might make for a protection visa would necessarily be decided by a Ministerial delegate and on any review by the Tribunal. But if any future application for a protection visa were to be decided by the Minister personally, it is reasonable to expect that the Minister, as a model litigant, would follow the procedure mandated for his surrogates in Direction 75: see BKS18 v Minister for Home Affairs v Minister for Home Affairs [2018] FCA 1731 at [108] (Barker J) and DOB18 at [66] (Logan J).

86    Further, for the reasons given by Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867 at [39]–[41], the notion that Direction 75 might be circumvented and protection obligations would not be considered (such as by refusing the visa for non-satisfaction of health criteria or national interest considerations) must be rejected.

Did the Tribunal err by failing to consider the prospect of indefinite detention?

87    The applicant also submitted that Tribunal fell into jurisdictional error by failing to consider the prospect that he might remain in immigration detention indefinitely. The submission was purportedly based on the terms of ss 189 and 196 of the Act.

88    Section 196(1) requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is removed from Australia under ss 198 or 199, an officer begins to deal with the non-citizen under s 198AD(3), the non-citizen is deported under s 200, or the non-citizen is granted a visa. It will be recalled that para 12.1(6) of Direction no. 79 states that, since “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 effect of ss 189 and 196 of the Act is that a person whose protection visa is refused (on character grounds) “would face the prospect of indefinite immigration detention”.

89    I also note that in Le the Full Court observed at [61](g) that, where a person’s visa application has been refused and the applicant is prevented by the Act from applying in Australia for a protection visa, the Minister’s obligation to consider the legal consequences of a decision under s 501(1) will include, where relevant, consideration of the prospect of indefinite detention.

90    As I have already observed, however, this case is not concerned with the refusal of a protection visa application and the applicant is not prevented by the Act from applying in Australia for a protection visa.

91    Section 197C was inserted by Sch 5, Pt 1, Div 1 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which commenced on 16 December 2014. It provides that, subject to the Minister considering “alternative management options”, for the purposes of s 198 it is irrelevant whether Australia has non-refoulement obligations to an unlawful non-citizen; an officer’s duty under s 198 to remove an unlawful non-citizen as soon as reasonably practicable “arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen”. Consequently, the prospect of indefinite detention no longer arises: see BKS18 at [97]–[101]; FBW18 at [84]–[85]. That does not mean, of course, that non-refoulement obligations will no longer be considered, merely that they will be considered at an earlier point in time. As the examples given in the Explanatory Memorandum on the Bill illustrate, “Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A(2), 195A or 417 of the Migration Act” at [1142].

Conclusion

92    For all these reasons ground 3 must be dismissed.

Did the Tribunal fail to consider “entirely” the impediments and risk of harm in Samoa “outside the concept of non-refoulement and the international obligations framework” (ground 4)?

93    At the hearing Mr Williams, who was the author of all versions of the originating application, including the further amended originating application, explained that, by alleging that the Tribunal failed to consider these matters “entirely”, he meant that the Tribunal had not considered them at all. That allegation is untenable.

94    The Tribunal squarely addressed the risk of harm the applicant faced in Samoa “outside the concept of non-refoulement and the international obligations framework” at [92]–[97] of its reasons. Contrary to the submissions made on the applicant’s behalf, the Tribunal did not make the same mistake as the previous Tribunal.

95    While the Tribunal did not refer to all the statements the applicant made on this subject in his statutory declaration, it summarised the effect of the applicant’s evidence. The transcript of the hearing was not included in the Court Book or otherwise placed before the Court, so it presumably did not take the matter any further. The Tribunal also referred to the applicant’s wife’s evidence that it was likely her husband would be killed if he were to return to Samoa and to a newspaper article relating to the death of a man in police custody in Samoa.

96    On the topic of the “extent of impediments if removed”, all that was said in the Applicant’s Facts, Issues and Contentions was that “the [a]pplicant would suffer considerable impediments were he to be removed – these would be loss of contact with family, friends and a loss of the possibility of making a better life in Australia”. This was said to be “a criterion to be counted in the [a]pplicant’s favour”. The applicant’s submissions did not suggest that the Tribunal failed to take these matters into account or that, it fell into jurisdictional error in the way it considered them.

97    The only “impediment” Mr Williams mentioned in his written and oral submissions was “the issue of extradition”. In the particulars to ground 3 he alleged that, in circumstances where the risk has been directly raised by the person concerned, it is “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”.

98    Mr Williams contended that “the issue of the applicant’s extradition to Samoa was clearly raised in evidence and was an issue before the Tribunal”. He submitted that on 29 June 2010 Samoa was declared an extradition country by Australia (although no such submission was apparently put to the Tribunal) and he referred to the request made to the AFP in October 2014 for the applicant’s return to Samoa. Samoa is, indeed, an extradition country within the meaning of the Extradition Act: see Extradition (Samoa) Regulations 2010 (Cth), reg 4. But Mr Williams informed the Court that:

(1)    the applicant has not been charged or convicted of any offence relating to his “release” from prison in Samoa;

(2)    no extradition arrest warrant has been issued pursuant to s 12 of the Extradition Act; and

(3)    the Attorney-General has not made a “surrender determination” pursuant to s 15B of the Extradition Act or issued a notice of request for extradition pursuant to s 16 of that Act.

99    In these circumstances, I cannot see why the Tribunal was obliged to consider the prospect of extradition. The question of extradition was no more than theoretical.

100    I accept that there was evidence that the applicant was considered by Samoan police to be a fugitive and that a request had been made by the Samoa Transnational Crime Unit for assistance in returning the applicant to Samoa. But I am unable to accept that the applicant’s extradition was an issue before the Tribunal. I repeatedly invited counsel to direct the Court to any material in the Court Book to show that “the issue of the applicant’s extradition to Samoa” was squarely raised before the Tribunal, but he was unable to do so. In particular, I asked him whether he could point to any substantial, clearly articulated argument that was made to the Tribunal about the significance to the Tribunal’s decision of the so-called extradition request and how the Tribunal should take that request into account. His answers were non-responsive.

101    The Tribunal makes no reference to any such submission and all that was said on the subject in the Applicant’s Facts, Issues and Contentions was this (at [65]):

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. That is a different matter dealt with through different processes.

102    It was the previous Tribunal which deferred consideration of the risk of harm on the basis that it would be dealt with in the context of any application for extradition, not the Tribunal whose decision is the subject of the present application.

103    In oral argument, however, Mr Williams indicated that by “extradition”, he was simply referring to the prospect that the applicant would be returned to Samoa, whether or not as a result of a court order, where he claimed to face a risk of harm of the kind that he described in his evidence. I was unable then, and I am unable now, however, to understand how, having regard to the Tribunal’s findings at [92]–[97], it can be said that the Tribunal failed to deal with that issue.

104    At one point during oral argument Mr Williams claimed that the Tribunal found that there was a risk of harm from the police in Samoa but did not deal with it because it said that there was not enough evidence. He contended that the “weighing exercise excluded the issue”, that there was an abundance of evidence before the Tribunal, and that the Tribunal could not “defer” the issue. But while the Deputy President did find that the applicant was at risk of harm if he were to be returned to Samoa, he did not say that there was not enough evidence. What he said was that the evidence was not enough to enable a determination to be made about the extent of the risk. On any fair reading of the Tribunal’s reasons it could not be said that the Tribunal “deferred” or “excluded the issue” when weighing the various considerations. It certainly was not “fobbed away” as counsel submitted. The weight to be attached to the evidence was a matter for the Tribunal. I am unable to discern any jurisdictional error in the Tribunal’s assessment of that evidence.

105    The only evidence that the applicant’s life was in danger from the police came from him and his wife. The relevant extracts from their statutory declarations are quoted at [19]–[20] above. Further, the Tribunal’s reasons (at [31]) indicate that the wife gave oral evidence that “[s]he felt her husband could be killed by corrupt police because his actions in escaping from prison had exposed the corruption and failures of the system in Samoa and that the police would be seeking retribution”.

106    Six media reports were provided to the Tribunal on 29 June 2018 by the lawyers then acting for the respondent. In addition, the lawyers submitted a 2015 document published on the internet by Freedom House, entitled “Freedom in the World Report on Samoa”. All of this material was of a general nature. None of it related to the applicant personally or to anyone in his or analogous circumstances.

107    The first was dated 11 August 2014. It concerned the death of a man in prison in 2012 in mysterious circumstances. It was a report about a law suit brought by the man’s family against the Samoan government for failing to protect him. It said that the family and its lawyer were calling on the government to address “the prison cruelty that led to his death”, and that two police officers had been sacked after an investigation which found that they had been negligent when dealing with the man. This was presumably the article to which the Tribunal referred at [93] of its reasons. The prison was Tafaigata prison, the prison from which the applicant had escaped or absconded.

108    The second was a report dated 11 September 2013 from the website of the Australian Broadcasting Corporation concerning an investigation into corruption at the prison by a Commission of Inquiry chaired by the Samoan Ombudsman due to begin the following week. Counsel assisting was reported as saying that sexual misconduct, mismanagement, and abuse of power had been reported by prisoners and former staff.

109    The third was dated 8 December 2014. It appears to be a republication of an article published in the Samoa Observer on 1 August 2014. It related to the report of the Commission of Inquiry. The article mentioned the Commission’s findings about a “significant culture of corruption”; “prisoner ill treatment” and “exploitation” at the prison; the “sad state” of its leadership; the prison death the subject of the first article mentioned above; “liaisons between police officers and inmates”; and the Commission’s doubts about “the basic honesty and truthfulness” of Samoan police. It also reported the Commission’s comment that “[p]rison staff contempt of ordinary decencies towards prisoners, open disregard of the strict prohibition against alcohol consumption within prison precincts and the creeping abuse of concessions allowed to them as in personal crop plantings on prison land, illustrate the shocking state of professional conduct prevailing in Tafaigata and the inability of prison leadership to impose appropriate standards”.

110    The fourth and most recent article was published on 30 July 2017. It reported on another Commission of Inquiry, chaired by a retired Supreme Court judge, which investigated the conduct of two senior police officers in the handling of two criminal cases in which corruption and breaches of the Police Code of Conduct were found to have occurred the precise details of which were not disclosed.

111    The fifth article was a report from the Samoa Observer first published on 3 April 2016 and related to the Ombudsman’s report on his inspections of Tafaigata prison. It highlighted issues of substandard hygiene; overcrowding; various complaints by female prisoners about their conditions; concerns expressed by the prison choir about the stigma that would be attached to its members if they were to sing regularly in public; and concerns by prisoners about changes to weekend parole. It reported how easy it was to escape from the prison. It noted that there had been numerous reports in the media about prison escapes and that the public was concerned about crimes committed by escapees. At the same time it reported that “[p]risoners are not worried about the consequences of escapes”.

112    The final article contained a report on the Commission of Inquiry into the corruption allegations in the prison. It canvassed the problems of overcrowding and inmates being sent to work and stay with senior police officers.

113    The Freedom House publication dealt with a range of subjects. On the question of prisons it stated:

Prisons generally meet minimum international standards. In 2013, the police commissioner and several deputies were suspended on allegations of corruption and prisoner abuse. An inquiry into the matter found mismanagement and other serious misconduct, including improper sexual relationships between prisoners and staff, at the Tafa’igata prison.

114    None of the primary sources was put before the Tribunal, although the article on the report by the Ombudsman following his inspections into the prison stated that that report could be downloaded from the Ombudsman’s website.

115    In the absence of a second or revised statement of Facts, Issues and Contentions or a transcript of the hearing, it is difficult to know to what use those documents were put at the hearing before the Deputy President. No explicit reference is made to them in the Applicant’s Facts, Issues and Contentions. The only allusion to any of this material appeared in paragraph 63 under the heading “Expectations of the Australian community”. Paragraph 63 reads as follows:

The applicant accepts that the departure from Samoa without completing his sentence is a matter of community concern. However, the systemic corruption that led to the extended length of the prison sentence as well as the corruption within the prison itself are factors that the community would also take into account. The applicant’s story of systemic corruption is corroborated by reports of Commissions of Inquiry into the police and prison system in Samoa. Corruption extended to prison officers/police allowing inmates to stay at their houses to perform domestic tasks for the relevant officer.

116    I was not taken to any material to suggest that the applicant was concerned about prison conditions. Indeed, in none of his statutory declarations did he advert to the possibility that, if he were returned to Samoa, he might have to serve the balance of his prison sentence. The statement by the applicant that he had been “continually assaulted, verbally abused and threatened to be killed” if he ever spoke to anyone, including the media, was not supported by any independent evidence.

117    The evidence was, indeed, limited. It was open to the Tribunal to conclude that it was insufficient to enable it to determine the degree of risk the applicant would be likely to face in Samoa. That conclusion was neither legally nor factually unreasonable.

118    For all these reasons ground 4 should also be dismissed.

Conclusion

119    Leave to rely on ground 6 is refused. Grounds 3 and 4, which are the only other grounds the applicant pressed, are dismissed. It follows that the further amended originating application must also be dismissed. Costs should follow the event. There will be orders accordingly.

120    That leaves the statement of claim. Having regard to the conclusions I have reached on the judicial review application, it would appear that the foundation for the claim that the applicant has been unlawfully detained since 24 May 2018 has fallen away. But I will make no orders about the matter at this point. Rather, I will direct the parties to bring in short minutes within seven days.

Associate:

Dated:    7 August 2020