FEDERAL COURT OF AUSTRALIA

Sami v Minister for Immigration and Border Protection [2015] FCA 1496

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for summary judgment filed on 11 November 2015 is dismissed.

2.    The applicant’s application filed on 1 October 2015 be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1)(a) of the Federal Court Rules 2011.

3.    The applicant pay the first and second respondents’ costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    There are two applications for summary judgment before the Court today. One, filed on 11 November 2015, is brought by the applicant, Mr Tony Sami, for summary judgment, seeking, in effect, an order setting aside the decision of a delegate of the first respondent not to approve him for Australian citizenship, and an order requiring that his application for Australian citizenship be considered according to law. The delegate’s decision was made on 14 June 2005. The other application is brought by the first respondent claiming summary dismissal of Mr Sami’s originating application filed on 1 October 2015, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 26.01(1)(a) of the Federal Court Rules 2011, on the grounds that the originating application has no reasonable prospects of success.

background

2    Mr Sami is currently in immigration detention. On 20 March 2012, whilst Mr Sami was in prison serving a sentence for fraud, his permanent residency visa was cancelled. On 15 February 2013, when Mr Sami was released from prison, he was immediately detained in immigration detention as a consequence of him having become an unlawful non-citizen.

3    I might observe in passing that during oral argument, Mr Sami also complained about the decision to cancel his permanent residency visa, but no claim for relief in respect of that decision formed part of his summary judgment application (which, I might add, set out the amended relief claimed by Mr Sami) before this Court today. Mr Sami has previously brought proceedings in the Administrative Appeals Tribunal (the Tribunal) in an unsuccessful attempt to set aside that permanent residency visa cancellation decision. Mr Sami’s appeal from the Tribunal’s decision was dismissed by McKerracher J in 2013 (Sami v Minister for Immigration and Citizenship [2013] FCA 1016 (Sami)). Mr Sami’s legal remedies in respect of the permanent residency visa cancellation decision have been exhausted.

4    As mentioned, Mr Sami complains of the refusal of a delegate of the first respondent to approve him for Australian citizenship. Mr Sami made two applications for Australian citizenship, one in 2005, to which I have referred; and another one in 2006. The 2006 application was denied on the basis that proceedings for a criminal offences against the law in Australia were pending against Mr Sami at that time. It is only the 2005 decision not to approve him for Australian citizenship which is the subject of Mr Sami’s application (the 2005 decision).

5    This is not the first application whereby Mr Sami has complained about the delegate’s 2005 decision. In 2013, Mr Sami applied to the Tribunal to extend the time within which to bring an application for review of the delegate’s 2005 decision. That application was refused by the Tribunal.

6    It is necessary, before going further, to set out some of Mr Sami’s background.

7    Mr Sami has been convicted of a number of offences in Australia. On 15 November 2001, he was convicted of fraud offences and sentenced to imprisonment of nine months for each of the seven charges, with two of the sentences to be served cumulatively and the rest concurrently, with the whole sentence suspended for a period of 18 months. Subsequently, on 22 January 2008, Mr Sami was sentenced to various cumulative and concurrent terms of imprisonment, which effectively amounted to a term of 26 months imprisonment, in relation to offences of gaining benefit by fraud, attempting to gain benefit by fraud, and stealing offences committed between 2005 to 2007. On 4 February 2011, Mr Sami was sentenced to a single term of 20 months imprisonment for six counts of engaging in conduct with the intention of dishonestly obtaining a gain from a Commonwealth entity. On 17 June 2011, Mr Sami was sentenced to 18 months imprisonment for attempting to obtain benefit by fraud and various other sentences for fraud related offences to be served concurrently with the sentence of 18 months imprisonment.

8    The Tribunal decision refusing an extension of time within which to review the 2005 decision was handed down on 27 June 2013.

9    The Tribunal, comprised by Professor Robin Creyke, was not satisfied that Mr Sami had given a satisfactory explanation for the delay of about eight years before applying for a review of the 2005 decision.

10    The Tribunal also said that Mr Sami’s application was futile because the Tribunal would not, in any event, be able to grant Mr Sami’s application for approval of Australian citizenship in light of the fact that his criminal record as at 2013 meant that he was a serious repeat offender, and so he would not meet the good character requirement. A further bar to his application for Australian citizenship, said the Tribunal, was that he failed to satisfy the essential requirement of being a permanent resident - his permanent residency visa having been cancelled in March 2012. These circumstances meant there was not sufficient merit in Mr Sami’s claim to warrant the Tribunal granting an extension of time.

the application before this court

11    When I asked Mr Sami to identify the jurisdictional basis upon which his originating application to set aside the 2005 decision was brought, he referred me only to s 23 of the Federal Court Act. However, particularly in light of the fact that Mr Sami has referred to certiorari and mandamus in his papers, I am prepared to regard the application as an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the 2005 decision of the delegate, or alternatively, as an appeal on a question of law against the decision of the Tribunal handed down on 27 June 2013, or judicial review of that decision.

12    Treating Mr Sami’s application as an application for relief under the constitutional writs in respect of the delegate’s 2005 decision, I am of the view, that Mr Sami’s application is devoid of any reasonable prospects of success, and should be dismissed for the following reasons.

13    First, there has been a delay of more than 10 years in bringing this application. That is, by any measure, a very substantial delay. Mr Sami has not given any evidence to explain his delay of more than 10 years, in fact, in seeking to review the decision of the delegate.

14    Secondly, even if Mr Sami was to succeed in his claim that the delegate erred in making the 2005 decision, the same considerations which were referred to by the Tribunal, in denying Mr Sami’s application to extend time, would apply. Contrary to Mr Sami’s contention, if the Court were to refer the matter back to the delegate for decision according to law, that decision would be made by reference to the prevailing law and circumstances; and not, as Mr Sami would have it, as if none of the post-2005 events such as his criminal activity and loss of permanent residency visa had ever occurred. (See, Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [97]-[101].) This circumstance is also a sufficient basis upon which to dismiss Mr Sami’s originating application.

15    Thirdly, the allegation made in Mr Sami’s originating application does not demonstrate error by the delegate in making the 2005 decision.

16    Mr Sami contended that the delegate’s error comprised the fact that there was in the papers before the delegate a police certificate in relation to Mr Sami’s first fraud conviction which recorded that Mr Sami had been convicted of seven counts of fraud and had been sentenced to 18 months imprisonment in respect of each of the counts, and the whole of the sentence was suspended for 18 months; whereas the true facts were that he was sentenced only to nine months imprisonment in respect of each of the counts, and that the imprisonment term of nine months in respect of two of the counts was to be served cumulatively and the terms of imprisonment in respect of the other counts were to be served concurrently, and the whole of the sentence was suspended for 18 months.

17    However, albeit that there was an error in the police certificate, the delegate did not rely upon the contents of the certificate in making the decision. The delegate referred to the sentence as being a total of 18 months imprisonment, and not eighteen months in respect of each count, and then went on to consider that Mr Sami was not of good character. On that basis, along with other bases, the delegate determined that Mr Sami had failed to satisfy the conditions for the approval of Australian citizenship. One of the other conditions relied on by the delegate was that Mr Sami was 274 days short of meeting the residential requirements of s 13(1)(e) of the Australian Citizenship Act 1948 (Cth).

18    I observe, in passing, that the same contention as to error as advanced today by Mr Sami, was advanced by Mr Sami before McKerracher J in Sami and was rejected by his Honour.

19    It follows that I am not persuaded that there is an error in the decision of the delegate.

20    Further, and in any event, as I have said, even if there was such an error by the delegate, there would be no utility in sending the matter back to the delegate for redetermination. This is because the delegate would need to consider Mr Sami’s application on the basis of the law and facts as they currently stand. Accordingly, as the Tribunal has found, because Mr Sami’s permanent residency visa has been cancelled, his application would fail on that basis alone; and secondly, his criminal record is such that Mr Sami falls within the definition of a serious repeat offender under s 13(11A) of the Australian Citizenship Act, and, therefore, his application also would fail on character grounds.

21    If Mr Sami’s application was to be construed as an appeal on a question of law from the Tribunal, Mr Sami would need the Court to extend the time within which he could bring the appeal (s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth)). For the reasons to which I have referred above, I would decline to extend time for the bringing of the appeal. Therefore, even if the application is characterised on this basis, it also has no reasonable prospects of success.

22    Likewise, if the application was characterised, as an application for judicial review of the Tribunal’s decision, that application would have no reasonable prospects of success because, for the reasons given above, the Tribunal did not fall into jurisdictional error.

23    It follows that I find that Mr Sami’s originating application, no matter how it is characterised, does not have reasonable prospects of success. There is simply no merit in Mr Sami’s application. Therefore, the first respondent’s application for the summary dismissal of Mr Sami’s originating application filed on 1 October 2015, succeeds. The consequence, of course, is that Mr Sami’s summary judgment application filed on 11 November 2015, fails.

24    Mr Sami is to pay the first and second respondents’ costs, to be taxed if not agreed.

Associate

Dated:    22 December 2015