Consideration
46 I consider first Ground 1 and Ground 2 which I have granted the applicant leave to rely on.
47 As to Ground 1, in my opinion the Tribunal made an error at [29] and [31] of its reasons in referring to s 501(3A) when its jurisdiction was to consider the exercise of the relevant discretion in s 501. (There was not any contention before the Tribunal that the applicant did pass the character test and could satisfy the Tribunal that he did. I understand there to be no contention in this Court that the applicant passed the character test as defined in s 501(6).)
48 Although, at [136], the Tribunal said that the present was not a decision made under ss 501CA or 501(3A), the Tribunal frequently referred to the decision being a non-revocation decision (see at [5], [81], [103], [118], [121], [129] and [141]) and reasoned in terms of the applicant's visa having been cancelled (see at [31], [103], [135], [137] and [140]). Also, the authorities to which the Tribunal referred at [137]-[140] concerned ss 501(3A) and 501CA(4). The reference at [139] to Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333, which concerned the constitutional validity of s 501(3A), appears particularly distracting. Immediately after those references, at [140]-[141], the Tribunal again incorrectly referred to the question before it as "the cancellation of the specific visa" and a "decision to allow the non-revocation decision to remain in place…". In my opinion these errors were material as they show that the Tribunal was misdirecting itself as to the nature of the discretion to be exercised. A decision whether or not to exercise the discretion to refuse to grant a visa in s 501(1) is substantially different to a decision whether or not to exercise the discretion under s 501CA to revoke a mandatory cancellation decision under s 501(3A), which would require, at least, the decision maker to be satisfied, relevantly, that there is another reason why the cancellation decision should be revoked.
49 Ground 1 succeeds.
50 Ground 2 stands or falls with Ground 1. The Tribunal's error at its footnote 44 and in [102] in referring to the incorrect parts of Direction No. 65 ([13] and [14] in Part C rather than [11] and [12] in Part B), and under the heading "Other Considerations", confirm that the Tribunal did not direct itself to the applicable discretion in s 501 but to the distinct discretion in s 501CA(4). While it may be said that, at [106], the Tribunal applied the "other considerations" listed in paragraph 12 (in Part B) rather than the "other considerations" listed in paragraph 14 (in Part C) this in my view does not answer the complaint that in substance the Tribunal regarded itself as considering whether or not to revoke the original decision under s 501CA.
51 In my opinion, Ground 2 does not require a separate answer.
52 I turn then to consider the remaining grounds, Grounds 3, 4 and 5, for which leave is required and is opposed.
53 One consideration is that if these amendments were permitted, the entirety of the matter could not have proceeded at the hearing, not least because of the challenge to the constitutional validity of provisions of the Migration Act in respect of which no notice under s 78B of the Judiciary Act had been given.
54 Another consideration is that the explanation for the delay on the part of the applicant is not at all clear, in view of the orders made by the Court on 9 October 2018 by consent and the further orders made on 18 February 2019, by consent. The best that could be said is that new lawyers found more points.
55 In relation to proposed Ground 3, the applicant by his then legal representatives, including counsel, submitted to the Tribunal that there were no non-refoulement obligations. Subject to my consideration of proposed Ground 4, it is not evident that there was a factual basis for such a claim and BCR16 does not arise in relation to proposed Ground 3. I am not persuaded that the applicant should be permitted by late amendment to challenge the Tribunal's decision on this ground, which was expressly not raised before the Tribunal when the applicant was legally represented.
56 I refuse leave to rely on proposed Ground 3. I would however add that, if the matter is remitted to the Tribunal, this refusal of leave should not, of itself, be taken to prevent the Tribunal from considering the issue of non-refoulement if that claim is then made.
57 In relation to proposed Ground 4, although it does not appear that the applicant claimed in his statutory declarations or other material that he was or would be subject to any such threats or reprisals in Samoa, the Tribunal found, as it said at [134] for itself, that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa. The Tribunal identified at [132] that the applicant may suffer reprisals at the hands of the prison authorities; identified in the heading above [134] the question whether the threat of harm in this instance was relevant; and set out again at [135] that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa. The Tribunal then said, at [138], that the calculation of threat of harm should be given equal weight with other criteria.
58 The Tribunal's dispositive reasoning on this point appears at [140], where the Tribunal said the repatriation or return of the applicant to Samoa (including, implicitly, the consequences for the applicant) was a matter for determination in another place and at another time. Here it appears the Tribunal was purporting to adopt the submission put to it on behalf of the applicant that the Tribunal should not be concerned with whether or not it would be appropriate for the applicant to be returned to Samoa to complete his sentence as that was a different matter dealt with through different processes. That submission in turn echoes an earlier representation put to the delegate on behalf of the applicant, in answer to the position of the Transnational Crime Unit/Interpol APIA that the applicant should return to Samoa to serve the remainder this sentence, that matters concerning extradition were for the Attorney-General's Department and it was not for the delegate to determine whether or not the applicant should be extradited to Samoa to carry out the remainder of his sentence. It follows that, in my opinion, the legal representatives of the applicant were making a different point, confined to the relevance to the Tribunal's decision of matters concerning extradition, which the Tribunal appears to have misunderstood.
59 Once the Tribunal had found as a fact, for itself, that there was a threat that the applicant may suffer adverse consequences were he to be returned to Samoa, and having decided, at [136], that the Tribunal should consider the matter, it is arguable that the Tribunal should have gone further than it did at [140] in order to complete the exercise of its jurisdiction. Arguably, whether or not the applicant will be extradited to Samoa is not an answer to the apparent failure on the part of the Tribunal to decide how the fear of harm as so found by it should weigh in the exercise of its discretion under s 501.
60 Notwithstanding my doubts as to the adequacy of the explanation for the delay and the lateness of the application to amend in this respect, it is relevant that counsel for the Minister did not indicate that she was not in a position to deal with the ground or that there was other prejudice. Further, this application is an application for judicial review in the original jurisdiction of the Court and is not an appeal, where a stricter view may be taken of an application to add new grounds where a party was represented by counsel and solicitors before the primary judge.
61 I grant leave to the applicant to rely on proposed Ground 4.
62 As to the disposition of this ground, I consider it is not covered by the earlier decisions in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 and HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 (note also, HSKJ on appeal, [2018] FCAFC 217; 363 ALR 325) as those cases concerned the Tribunal erroneously applying a hierarchy of considerations under Direction No. 65. The present Tribunal said expressly, at [138], that it was not doing that.
63 I accept that BCR16 reflects a finding that in order for there to be a valid exercise of the statutory power under s 501CA(4), it is necessary to consider any risk of harm if the person was to be returned to his or her place of nationality (not just harm that would give rise to non-refoulement obligations) where that risk has been raised by the person concerned.
64 In the different context of s 501, and in the circumstances where the risk has not been directly raised by the person concerned, is it a jurisdictional error on the part of the Tribunal to leave the matter for another day on the basis that the risk of harm it had found would be dealt with in the context of the application for extradition in relation to the remainder of the applicant's jail sentence?
65 In my opinion, in this respect the Tribunal has misunderstood and failed to complete the task required under s 501(1). It has postponed the consideration of, and therefore not considered, a factor which it found was relevant to the exercise of its discretion and to which it said it would give equal weight with other criteria. The Tribunal has postponed consideration because, it reasoned, the decision-maker in dealing with the extradition request would have to weigh up all the competing factors, so the Tribunal did not need to. However, in my opinion, adapting what was said in BCR16 at [49], deciding whether to refuse to grant a visa under s 501(1) involves a qualitatively different exercise to decision-making in relation to extradition. The question of the risk of harm, in these circumstances, should have been weighed by the Tribunal in exercising its discretion under s 501(1).
66 I uphold Ground 4.
67 Proposed Ground 5 appears to proceed on the basis that unless the applicant had been convicted under Samoan law, escape or absconding from lawful custody was a prohibited consideration for the Tribunal and that it therefore made a jurisdictional error. There is no basis for this ground. On a fair reading of its reasons, the Tribunal did not say that these matters established the applicant's substantial criminal record as defined. Further, I do not regard it as arguable that Direction No. 65 prohibits the Tribunal, in considering the expectations of the Australian community, from taking into account the applicant's admitted "unacceptable" action of not returning to jail in Samoa. Indeed the applicant, through his then legal representatives, accepted in the Tribunal that "the departure from Samoa without completing his sentence is a matter of community concern."
68 I refuse leave to rely on proposed Ground 5.