FEDERAL COURT OF AUSTRALIA

Sami v Minister for Immigration and Border Protection [2016] FCA 1405

ORDERS

THE COURT ORDERS THAT:

1.    The application filed 23 September 2016 be dismissed.

2.    The applicant pay the respondents’ costs, 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

BARKER J:

1    The applicant, Mr Tony Sami, applies in substance for an extension of time in which to seek leave to appeal from orders of this Court (1) summarily dismissing his application for judicial review of a decision of a delegate of the former Minister for Immigration and Multicultural Affairs made in 2005, refusing to grant Mr Sami Australian citizenship, and (2) dismissing Mr Sami’s interlocutory application for summary judgment.

Background

2    After arriving in Australia from Egypt on a subclass 676 visitor visa on 4 June 2000, Mr Sami married an Australian citizen on 10 July 2000.

3    On 8 October 2003, he became an Australian permanent resident under the Migration Act 1958 (Cth) due to being granted a subclass 801 spouse visa.

4    Before that, however, on 15 November 2001, Mr Sami was convicted of fraud offences and sentenced to a term of imprisonment of nine months for each of the seven charges, with two of the sentences to be served cumulatively, and the rest concurrently. The consequent whole sentence of 18 months was suspended for a period of 18 months.

5    On 6 January 2005, Mr Sami applied for Australian citizenship under the then operative Australian Citizenship Act 1948 (Cth) (since repealed) (1948 Act). A delegate of the Minister refused his application on 14 June 2005, on the basis that Mr Sami did not meet the residency and good character requirements of the 1948 Act.

6    Mr Sami made a further application for Australian citizenship on 24 October 2005 under the 1948 Act. Pursuant to s 13(11), this was refused on 18 May 2006, on the basis of pending proceedings against him for an offence under Australian law.

7    His permanent residency in Australia continued, however, through this period.

8    Between 2008 and 2011, Mr Sami was convicted of, and sentenced to, terms of imprisonment for a number of stealing, dishonesty and fraud offences.

9    While Mr Sami was in prison serving one of these terms of imprisonment, his permanent residency visa was cancelled by the Minister under the Migration Act 1958 (Cth). His application to the former Migration Review Tribunal for merits review of the cancellation was unsuccessful, and his subsequent “appeal” to this Court was dismissed. See Sami v Minister for Immigration and Citizenship [2013] FCA 106.

10    At that point the appellant’s legal remedies in respect of the permanent residency visa cancellation decision were exhausted.

11    On 31 May 2013, however, some seven and eight years after the events, Mr Sami made an application to the Administrative Appeals Tribunal seeking review of the original 2005 and 2006 decisions of the delegate refusing to grant him Australian citizenship, together with an application for an extension of time within which to bring the review application. The Tribunal refused to grant an extension of time within which to seek review of the 2005 and 2006 decisions on 27 June 2013.

12    Not dissuaded by this turn of events, Mr Sami then applied to this Court in October 2015 for review of the delegate’s initial decision of June 2005 refusing his initial application for Australian citizenship under the 1948 Act. By that time, the Australian Citizenship Act 2007 (Cth) (2007 Act) had come into operation and the 1948 Act had been repealed.

13    On 9 December 2015, the primary judge made the orders dismissing Mr Sami’s interlocutory application for summary judgment, and summarily dismissing Mr Sami’s originating application for review. See Sami v Minister for Immigration and Border Protection [2015] FCA 1496.

14    On 27 September 2016, Mr Sami filed this application seeking, in substance, an extension of the time to apply for leave to appeal from the orders of the primary judge. The Minister opposes Mr Sami’s application.

Delegate’s decision in 2005

15    In the challenged 2005 decision, the delegate noted that, at the time of applying for Australian citizenship, Mr Sami had spent 456 days in Australia as a permanent resident. Consequently, while Mr Sami satisfied the residential requirements of s 13(1)(d) of the 1948 Act, he was 274 days short of meeting the requirements of s 13(1)(e).

16    As such, Mr Sami sought the exercise of the delegate’s discretionary powers to grant him Australian citizenship under s 13(4)(b)(i)-(iv) and (9)(c).

17    The delegate held he could not exercise the discretionary power conferred by s 13(4)(b)(i) and (ii) because they were not applicable to the circumstances of Mr Sami. The delegate noted that s 13(4)(b)(iii) was “[n]ot listed”.

18    The delegate did not consider that Mr Sami would suffer significant hardship or disadvantage if a certificate of Australian citizenship was not granted to him, and so did not exercise the discretionary power conferred by s 13(4)(b)(iv) or (9)(c).

19    In this regard, the delegate found there was no evidence to support Mr Sami’s claims that he was unable to renew his Egyptian passport and that employment was not available to him due to not being an Australian citizen. The delegate further found that Mr Sami did not satisfy the policy requirements of s 13(9)(c) as he and his wife had been separated since 2002 and did not live together at the time of his citizenship application.

20    For the purposes of s 13(4)(b)(v), the delegate also did not consider that the delay of 14 months in assessing Mr Sami’s permanent residency visa was due to an administrative error.

21    Finally, in light of the fraud offences of which Mr Sami had been convicted and sentenced on 15 November 2001, the delegate did not believe that Mr Sami could be assessed as being of good character for the purposes of s 13(1)(f).

22    In the result, the delegate accepted the recommendation that he refuse Mr Sami’s application for Australian citizenship because he did not meet the requirements of s 13(1)(e) and (f).

23    On 31 May 2013, Mr Sami then applied to the Tribunal for review of the delegate’s decisions in both 2005 and 2006, as discussed above, and an extension of time in which to seek review, which was denied.

Tribunal’s decision

24    In its 2013 decision, the Tribunal noted that, in circumstances where its discretion to extend time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) was unconfined, the overall purpose of that discretion was to prevent an injustice that an applicant might suffer if a rigid time limit was adhered to, citing the relevant principles in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186.

25    The Tribunal considered the delay between the respective decisions in 2005 and 2006, and Mr Sami’s application for review of those decisions in 2013, to be unacceptable given the difficulties this created in finalising his applications.

26    Mr Sami’s reasons for this delay were that he was never given a copy of the decisions or never knew that he could appeal them; he only discovered “the error occurred during the process of the application recently”; and he was being illegally detained in Perth Immigration Detention Centre at a time when he should have been an Australia citizen.

27    As to the alleged “error” in the delegate’s decision, Mr Sami claimed that the 12 month or more term of imprisonment referred to as a “substantial criminal record” for the purposes of the character test in s 501 of the Migration Act 1958 (Cth) had been applied in his case. He said the incorrect reference to an 18 month period of imprisonment for his convictions in 2001, being a term in excess of 12 months, underpinned the refusal to grant him citizenship.

28    In this regard, the Tribunal noted that, as the “good character” requirement was not defined in either the 1948 Act or its successor, the 2007 Act (which applied to Mr Sami’s application by reason of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth)), while a term of imprisonment may be relevant to that criterion, no particular term was specified for the purposes of deciding whether someone was of good character.

29    The Tribunal considered the more substantive issue to be Mr Sami’s claim that he did not receive any letters from the delegate notifying him that either of his citizenship applications had been refused and of his right of review by the Tribunal. The Tribunal nonetheless had difficulty accepting this claim given Mr Sami’s regular correspondence with the former Department of Immigration and Citizenship prior to October 2003, and considered it improbable that, as claimed by Mr Sami, a Department official would have refused to provide a copy of the letter if a person claimed that the original had not been received.

30    Further, even if it accepted Mr Sami’s claim that he was moving house at the time of notification of the 2005 decision, the Tribunal was not satisfied that Mr Sami did not receive the notification of the 2006 decision, which would have made him aware that his right of review by the Tribunal had to be exercised within 28 days. Consequently, the Tribunal did not accept this explanation for his seven year delay in lodging his application for review.

31    While the Tribunal accepted that being in detention limits a person’s ability to manage affairs external to the detention centre, it noted that Mr Sami was not in detention until 2008, and not continuously until 2011. Accordingly, Mr Sami had two or three years when he was not in detention, during which time the Tribunal considered he could easily have followed up his application for citizenship and sought review in the Tribunal.

32    For those reasons, the Tribunal did not accept that Mr Sami’s explanations for the delay were sufficient to satisfy it that he should be entitled to an extension of time to seek review.

33    When considering the merits of Mr Sami’s application for review, the Tribunal noted that, subject to any legislation to the contrary, it was entitled to take into account any relevant information up to the date of its decision. As the terms of the 2007 Act did not prohibit the Tribunal from considering facts subsequent to the decisions under review, the Tribunal held that it was able to consider Mr Sami’s offences and sentences subsequent to the decisions in 2005 and 2006.

34    The Tribunal was not persuaded that Mr Sami’s sentence of 15 November 2005 was a “serious prison sentence” as defined in s 3 of the 2007 Act. In any event, it held that his effective sentences in 2008 and 2011 of 26 months and 20 months respectively, meant he was a “serious repeat offender” as also defined in s 3 of the 2007 Act. Consequently, Mr Sami would not meet the “good character” requirement for the purposes of a citizenship application under the 2007 Act.

35    The Tribunal also noted that the cancellation of Mr Sami’s permanent residence visa on 20 March 2012 meant he did not satisfy the requirement of being a permanent resident prior to being granted Australian citizenship.

36    Taking account of these “significant barriers”, the Tribunal was not satisfied that the merits of Mr Sami’s claim warranted granting him an extension of time.

37    In the result, the Tribunal was not satisfied that it was reasonable to grant Mr Sami’s application for an extension of time, and so refused his application for review of the delegate’s decisions in 2005 and 2006.

Primary judge’s decision

38    Mr Sami never sought to immediately challenge the Tribunal’s decision after it was made. Instead, more than two years after the Tribunal’s decision, in October 2015, he applied to judicially review the Tribunal’s decision or the initial decision of the Minister’s delegate refusing his citizenship application in 2005; or alternatively, to appeal against the Tribunal’s decision.

39    The primary judge regarded Mr Sami’s application as an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the delegate’s decision in 2005 or, alternatively, an appeal on a question of law against the Tribunal’s decision or judicial review of that decision.

40    Treating Mr Sami’s application as one for relief under s 39B of the Judiciary Act 1903 of the delegate’s decision in 2005, the primary judge was of the view that Mr Sami’s application was devoid of any reasonable prospects of success and should be dismissed.

41    Firstly, the primary judge characterised the delay of 10 years in bringing the application as a very substantial one, and noted that Mr Sami had not given any evidence to explain the delay.

42    Secondly, even if Mr Sami was to succeed in his claim that the delegate erred in making the 2005 decision, the primary judge noted that, 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 contended, 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] (Hayne and Heydon JJ); [2008] HCA 31. The primary judge considered this circumstance to be a sufficient basis upon which to dismiss Mr Sami’s originating application.

43    Thirdly, the primary judge held that the allegation made in Mr Sami’s originating application, that there was, in the papers before the delegate, a police certificate that inaccurately recorded the sentences imposed in relation to Mr Sami’s first fraud conviction, did not demonstrate error by the delegate in making the 2005 decision.

44    His Honour considered that, in circumstances where the delegate cited the correct information regarding Mr Sami’s first fraud conviction rather than the information contained in the police certificate, the delegate did not rely upon the contents of the certificate in making his decision. The delegate determined Mr Sami was not of good character on the basis of the correct information; a determination which in turn contributed to the delegate finding that Mr Sami had failed to satisfy the conditions for the approval of Australian citizenship.

45    In the result, the primary judge was not persuaded there was an error in the delegate’s decision.

46    The primary judge considered that, in any event, as discussed above, 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 because the delegate would need to consider Mr Sami’s application on the basis of the law and facts as they currently stood. His Honour noted that the Tribunal accordingly found, because Mr Sami’s permanent residency visa had been cancelled, his application would fail on that basis alone. His Honour further considered Mr Sami’s criminal record to be such that he fell within the definition of a “serious repeat offender” under s 13(11A) of the 1948 Act and, therefore, his application also would fail on character grounds.

47    If the appeal was an appeal on a question of law from the Tribunal, the primary judge noted that, pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975, Mr Sami would need the Court to extend the time within which he could bring the appeal. For the reasons stated above, his Honour held that he would decline to extend time for the bringing of the appeal, and so the application for review had no reasonable prospects of success.

48    If the application was characterised as an application for judicial review of the Tribunal’s decision, his Honour held the application would have no reasonable prospects of success because, for the reasons given above, the Tribunal did not fall into jurisdictional error.

49    In the result, the primary judge held that, no matter how the application was characterised, it did not have reasonable prospects of success.

50    Accordingly, the Minister’s application for summary dismissal of Mr Sami’s originating application was successful, and Mr Sami’s summary judgment application was dismissed.

51    Mr Sami now apparently applies for an extension of time in which to seek leave to appeal from the primary judge’s decision.

Application to this court

52    In his affidavit sworn 18 August 2016, Mr Sami raises the following grounds in support of his application:

4.    It’s in the Public interest and justice that this case been heard.

5.    It’s clearly that the Honourable Justice erred in applying:

a)    Wrong laws and regulations.

b)    Wrong time frame.

c)    Wrong important information

6.    This case concerning a vital Departmental error concerning the applicant’s Citizenship and it would be just to correct this error.

7.    His Honour erred in changing or modifying a sentence passed by another Honourable District Court Judge without proper procedures.

53    Mr Sami’s draft notice of appeal dated 9 November 2016 raises the following proposed grounds of appeal:

1.    The Honourable Justice Siopis applied an incorrect principle of Law

a)    granted the Respondent a Summary Judgment while the Applicant has proven grounds and facts to be considered

b)    allowed the change of District Court Judge sentence to be amended without the proper legal procedures.

c)    Granted summary judgement to the respondent based on an error in law specific that the applicant’s application for Citizenship deemed to failed for the reason that they will assess the application on future events.

2.    The Honourable Justice ‘Siopis’ agreed with the Tribunal while it’s clearly that it demonstrated misunderstanding to the case concept.

a)    The Honourable Justice ‘Siopis’ ignored the fact the AAT had demonstrated at point number 10 of it’s reasons of Decisions a complete lack and minsinformant to the applicant’s case at the time.

3.    The Honourable Justice ‘siopis’ made a finding of fact on ajn important issue which could not be supported by evidence.

a)    His Honour took the view of the Honourable Justice McKerracher even that the applicant originating application was asking the Honourable Court to remit the application for Citizenship on the 6th of January 2005 back to the Department even though the Finding of his Honour was in 18 of February 2013.

54    Mr Sami’s application to extend the time within which to appeal against the primary judge’s order summarily dismissing his application (however it is to be characterised), lacks any plausible basis.

55    As the Minister reasonably submits, if Mr Sami had wished to obtain leave to appeal from the primary judge’s order, he should have applied within 14 days after the decision was made, that is to say, no later than 23 December 2015. Instead, he did not purport to do so until August 2016, more than 18 times the ordinary 14 day time limit. No explanation has been given, save that Mr Sami said, from the bar table, in oral submissions to the Court on the hearing of the application that he had experienced psychological issues.

56    But even leaving that question of delay aside, there is no merit in the application for judicial review of the 2005 decision of the delegate, or the appeal from, or judicial review of, the Tribunal’s decision, for all the reasons that the primary judge gave. Before this Court in oral submissions, Mr Sami complained that the delegate had denied him natural justice and procedural fairness. He, in effect, made the same claims before the Tribunal. The Tribunal was not convinced by any of those grounds. Mr Sami has had an opportunity to ventilate these grounds and he has lost. The primary judge was plainly right not to think there was anything in them.

57    Additionally, as the primary judge said, the delay of 10 years in bringing the application was a very substantial one for which no real evidence to explain the delay has been offered.

58    Further, despite Mr Sami’s submissions to the contrary, there is no utility in any event in allowing either an extension of the time within which to seek leave to appeal or granting leave to appeal because of the change in his personal circumstances since he initially made an application for citizenship under the 1948 Act, namely, the cancellation of his permanent residency visa and his substantial criminal record, and because the 1948 Act has been repealed and the 2007 Act has come into operation. As the primary judge said, there is no likelihood that the change of the law and Mr Sami’s personal circumstances can benefit Mr Sami and his application under the 2007 Act, were it to be renewed, is bound to fail.

59    While Mr Sami in submissions made to the Court considers that his circumstances should be considered by reference to his 2005 citizenship application under the 1948 Act, the opposite is true. If his citizenship application were referred back to the Minister it would be considered according to current law and present circumstances; if it were referred back to the Tribunal, the Tribunal would also be entitled to take into account any relevant information and laws up to the date of its decision in circumstances where the 2007 Act does not prohibit it from doing so. Mr Sami’s position, due to his own delay in pursuing remedies, most recently in this Court, has seen the introduction of the 2007 Act which, in light of his intervening convictions, makes the initial refusal of the delegate in 2005 effectively irrefutable under the 2007 Act.

60    Mr Sami’s intermittent forays in courts and the Tribunal, and his apparent disregard for the time limits laid down by Australian law within which to seek administrative and judicial remedies, creates the impression that he is not so much concerned to vindicate injustice as to delay any final consideration of his circumstances in Australia. Applications for administrative and judicial review are not ordinarily to be agitated at the discretion of an applicant, however, but within the time limits set by law. No doubt in certain circumstances justice will demand extensions of time. But there is nothing in the circumstances of Mr Sami to suggest that he has unfairly been denied some fundamental right, some administrative review process or some judicial review process. His case was considered in some detail in the Tribunal, where he failed.

61    For all the reasons given by the primary judge, Mr Sami’s application for review, however it is to be construed, has no realistic prospect of success. There is no arguable error revealed in the primary judge’s reasons for decision.

62    When all of that is taken into account, together with the further considerable delay in seeking leave to appeal against the primary judge’s decision, for which no proper explanation has been given, the application before the Court in effect to extend the time in which to seek leave to appeal should be refused.

order

63    The Court orders:

(1)    The application filed 23 September 2016 be dismissed.

(2)    The applicant pay the respondents’ costs, to be taxed if not agreed.

Associate:

Dated:    24 November 2016