FEDERAL COURT OF AUSTRALIA
Sami v Commonwealth of Australia [2018] FCA 1991
Table of Corrections | |
In the Appeal from: on the cover page, the appeal case “Sami v Minister for Immigration and Border Protection [2016] FCA 1405” is replaced with “Sami v The Commonwealth of Australia [2018] FCA 800”. |
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Applicant’s application of 28 June 2018 for an extension of time to seek leave to appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WHITE J:
1 The applicant is a 57 year old Egyptian national who came to Australia on 4 June 2000 on a Tourist (Short Stay) Subclass 676 visa. Following his marriage to an Australian citizen on 10 July 2000, the applicant applied for a Partner visa on 15 August 2000. He was granted a Partner (Temporary) Subclass 820 Spousal visa in January 2001 and a Partner (Residents) (Subclass 801) visa (Permanent Spousal Visa) on 8 October 2003.
2 That visa was cancelled on 20 March 2012. It is that cancellation and earlier unsuccessful applications by the applicant for the grant of Australian citizenship which provide the background to the present proceedings.
3 The applicant applies for an extension of time in which to bring an application for leave to appeal from the judgment of a Judge of the Court delivered on 1 June 2018 and for leave to appeal in the event that the extension is granted.
4 For the reasons which I will state shortly, I consider that, in the particular circumstances of this case, the applicant does not require leave to appeal. He is entitled to appeal as of right.
5 By r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR), the applicant was required to file his notice of appeal within 21 days of the judgment to be appealed against. That 21 day period expired on 22 June 2018. Accordingly, I have treated the applicant’s application, filed on 28 June 2018, as an application for an extension of time in which to appeal.
6 Although an extension of six days is a relatively short period of time, the applicant has not shown that the discretion to extend time should be exercised in his favour. Accordingly, even treating the application as one for an extension of time in which to appeal, it must be dismissed. My reasons follow.
The proceedings at first instance
7 In the proceedings at first instance, the applicant sought judicial review, pursuant to s 39B of the Judiciary Act 1903 (Cth). His application did not indicate with any precision the decision or conduct he sought to have reviewed, but the applicant claimed that he is being held in immigration detention unlawfully. He sought relief of various kinds, including an order for his release from detention, an order restraining his deportation from Australia, and an order correcting a perceived error in the Departmental file. The Statement of Claim indicated that the applicant sought an award of damages in respect of his claimed unlawful detention and the negligence of the Commonwealth.
8 The Commonwealth, which was the sole respondent to the proceedings, sought their summary dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).
9 The Judge granted that application on 1 June 2018 and the applicant’s originating application was summarily dismissed: Sami v The Commonwealth of Australia [2018] FCA 800 (Davies J).
The application for leave to appeal
10 By reason of s 24(1D)(b) of the FCA Act, a decision granting summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A) of the FCA Act. Accordingly, it is understandable that the applicant (who does not have legal representation) considered that he required leave in order to appeal, and that he has brought an application seeking such leave.
11 Rule 35.13(a) of the FCR requires an application for leave to appeal to be brought within 14 days of the decision in respect of which the leave is sought. In the applicant’s case, that period expired on 15 June 2018. As indicated, the applicant did not file the present application until 28 June 2018. Hence, he sought an extension of time in which to bring the application.
Criminal convictions and sentences
12 The applicant has multiple criminal convictions which can be summarised as follows:
15 November 2001: Convicted and sentenced in the District Court of Western Australia to imprisonment for nine months on each of seven charges of fraud. The terms of sentence on counts 1 and 3 made cumulative, and the rest concurrent. Sentence suspended.
22 January 2008: Sentenced in the District Court of Western Australia for multiple counts of gaining benefits by fraud and stealing. Sentences of imprisonment ranging from between two and ten months imposed. Total of the periods of imprisonment was two years and two months.
4 February 2011: Sentenced to a single term of imprisonment for 20 months on six counts of intending to dishonestly obtain a gain from a Commonwealth entity, with release after serving 14 months on entering into a recognisance to be of good behaviour for three years and on giving security by recognisance in the amount of $5,000.
17 June 2011: Sentenced in the District Court of Western Australia to imprisonment for 18 months for attempting to gain benefit by fraud.
17 June 2011: Convicted in the District Court of Western Australia on 16 counts of gaining goods or benefits by fraud. Sentenced to imprisonment of six months on each count to be served concurrently. Applicant also convicted on two counts of attempting to gain a benefit by fraud for which he was sentenced to imprisonment for six months on each count, to be served concurrently.
The grant of a Permanent Spousal Visa
13 During 2003, a delegate of the Minister considered whether the applicant should be refused a Permanent Spousal Visa pursuant to s 501 of the Migration Act 1958 (Cth) because the sentences imposed in 2001 meant that he did not pass the character test set out in s 501(6). On 8 October 2003, the applicant was informed that a decision had been made not to refuse the grant of the visa pursuant to s 501. On the same day, the applicant was granted a Permanent Spousal Visa.
14 The reasons indicate that, in deciding whether the grant of the visa should be refused, the delegate had proceeded on the basis that the applicant had been sentenced “to 18 months’ imprisonment, suspended, on 7 charges associated with writing fraudulent cheques”. In doing so, the delegate had relied on a certificate from the Australian Federal Police (AFP), obtained and provided by the applicant at the Department’s request. Although the certificate was not before the Court, it was common ground that, in stating that the applicant had been sentenced on each count to imprisonment for 18 months, it had recorded the applicant’s sentences inaccurately. Instead, as already noted, the applicant had been sentenced to multiple terms of imprisonment of nine months, with two of those terms ordered to be served cumulatively.
Cancellation of the applicant’s visa
15 Eight years later, on 30 September 2011, the Department of Immigration and Citizenship notified the applicant that his visa was to be considered for cancellation pursuant to s 501(2) of the Migration Act.
16 On 20 March 2012, a delegate of the Minister, acting under the s 501(2) of the Migration Act, cancelled the applicant’s Permanent Spousal Visa because he did not pass the character test. The applicant sought review in the Administrative Appeals Tribunal (the Tribunal) but the cancellation decision was affirmed: Sami v Minister for Immigration and Citizenship [2012] AATA 459. On 21 February 2013, his application for judicial review of the Tribunal’s decision was dismissed: Sami v Minister for Immigration and Citizenship [2013] FCA 106 (McKerracher J). The applicant’s appeal against that decision was dismissed: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128. His subsequent application for special leave to appeal to the High Court was also unsuccessful: Sami v Minister for Immigration and Citizenship [2014] HCASL 212.
17 The applicant did not hold any other visa and has not been granted any visa subsequently. Accordingly, on the cancellation of his Permanent Spousal Visa, the applicant became an unlawful non-citizen, within the meaning of ss 13-15 of the Migration Act. On 15 February 2013, upon his release from prison in Western Australia, he was taken into detention under s 189(1) of the Migration Act. The applicant has remained in detention ever since.
Applications for citizenship
18 Before the cancellation of his visa, the applicant had twice sought the grant of Australian citizenship. I summarise the course of those applications as follows:
6 January 2005: Applicant applied to be granted Australian citizenship.
May 2005: Application refused because the applicant did not meet the residence and good character requirements in s 13(1)(e) and (f) respectively of the Australian Citizenship Act 1948 (Cth) (the 1948 Act).
14 June 2005: Applicant informed of that decision.
24 October 2005: Applicant lodged a second application for citizenship.
18 May 2006: Second application for citizenship refused. Applicant did not meet the requirements in s 13(11)(a) of the 1948 Act (which prohibited the Minister from granting a certificate of Australian citizenship to a person during any period in which proceedings for an offence against a law of the Commonwealth, a State or a Territory were pending in relation to the person).
31 May 2013: Belated application to the Tribunal for an extension of time in which to seek review of the decisions refusing his applications for Australian citizenship.
27 June 2013: The Tribunal dismissed the application for an extension of time: [2013] AATA 445.
19 In 2015, the applicant brought belated judicial proceedings in this Court seeking, in effect, the setting aside of the decision of the delegate in 2005 not to approve him for Australian citizenship. That application failed: Sami v Minister for Immigration and Border Protection [2015] FCA 1496 (Siopis J), as did the applicant’s subsequent application for an extension of time in which to seek leave to appeal from that judgment: Sami v Minister for Immigration and Border Protection [2016] FCA 1405 (Barker J).
Application for a protection visa
20 Shortly after being taken into Immigration detention on 15 February 2013 and the decision of McKerracher J on 21 February 2013, the applicant applied for a protection visa. In summary form, the course of events in relation to that application has been as follows:
12 March 2013: Applicant applied for a Protection (Subclass 866) visa.
26 June 2013: Application refused by a delegate of the Minister.
17 December 2013: Delegate’s refusal affirmed by the Tribunal.
7 September 2016: Federal Circuit Court (the FCC) found that the Tribunal’s decision was affected by jurisdictional error, set it aside and remitted the matter to the Tribunal for reconsideration.
12 May 2017: Tribunal again affirmed the delegate’s decision.
21 August 2018: FCC dismissed the applicant’s application for judicial review of the Tribunal decision.
The application in the primary proceedings
21 The primary proceedings, in the form of an originating application for relief under s 39B of the Judiciary Act, were commenced by the applicant on 19 January 2018. The applicant gave the following details of his claim:
On the grounds stated in the statement of claim, … the Applicant applies for the following relief under s 39B of the Judiciary Act 1903:
1. A Mandamus order refraining (sic) the Department of Home Affairs (Multicultural Affairs) of continuing detaining (sic) the Applicant falsely.
2. A mandamus order directing the Department of Home Affairs (Multicultural Affairs) to correct the error occurred (sic) in the applicant’s file since the year 2002.
3. A mandamus order directing the Department of Home Affairs (Multicultural Affairs) to deal with the applicant’s case according to law.
22 The application also contained a claim for interlocutory relief as follows:
1. An Interlocutory order refrain (sic) the Department of (sic) deporting or taking any further steps to deport the applicant until the conclusion of this procedures (sic).
2. An interlocutory order directing the Department to release the Applicant from detention until the conclusion of this procedures (sic).
3. An interlocutory (sic) to fast track this procedures (sic).
23 The application was supported by a Statement of Claim. Paragraphs [9]-[12] contained the assertions upon which the applicant relied, as follows:
[9] At all relevant times the Department of Home Affairs (Multicultural Affairs) is (sic) detained the Applicant falsely in one of its Detention Centres.
[10] At all relevant times the Department erred in assessing the Applicant’s application for Australian Citizenship (06/01/2005) and denied him procedural fairness.
[11] At all relevant times the Department ignored all following laws and regulations: Constitution s 61, Migration Act 1958, Australian Citizenship Act 1948.
[12] At all relevant times the Department illegally detained the applicant Australian Citizenship (sic) and as results (sic) it detained him illegally on the 15th of February, 2013.
24 These assertions were supported by some 25 paragraphs of “particulars”. In substance, the applicant alleged that, by reason of the errors in the AFP certificate, the consideration of his applications for citizenship had been delayed. This was said to have made his detention unlawful, with the applicant alleging that he had been falsely imprisoned by the Department since being taken into detention on 15 February 2013. Paragraphs [34]-[37] also contained allegations of negligence by the Department in holding him in detention since 15 February 2013 for which the applicant claimed damages.
The decision of the primary Judge
25 After identifying the principles bearing upon the application of s 31A of the FCA Act, the primary Judge said that five separate matters indicated that the applicant’s claims had no reasonable prospect of success.
26 In relation to the claim for damages for negligence, the Judge noted that this claim had been abandoned by the applicant during the hearing, as he had made it clear that he did not seek damages but instead his removal from detention, at [15]. The Judge also held that, even had the applicant pursued that claim, he would have had no reasonable prospect of success because of the availability of statutory rights of review, which rights the applicant had in fact exercised. In this respect, the Judge applied Pickering v Centrelink [2008] FCA 561 at [15]-[21].
27 Secondly, as an unlawful non-citizen within the meaning of ss 13-15 of the Migration Act, the applicant was lawfully held in detention (s 189(1) of the Migration Act) and, by virtue of s 196 of the Migration Act, was required to be held in detention until removed from Australia or granted a visa. As the applicant had exhausted the pursuit of legal remedies with respect to the decision to cancel his visa, there was no basis upon which the Court could find that his detention was not both authorised and required by ss 189 and 196. The fact that, at the time the Judge was considering the matter, the FCC was reserved on the application for judicial review of the second Tribunal decision concerning his application for a Protection Visa, did not make the applicant’s continuing detention unlawful. This meant that the applicant’s claims of wrongful imprisonment had no reasonable prospect of success. An order restraining the Commonwealth from deporting the applicant pending the determination of his Protection visa was unnecessary as the Commonwealth had informed the Court that it would not remove the applicant from Australia under s 198(5) of the Migration Act pending the judgment of the FCC.
28 Thirdly, the Judge considered that the applicant’s claim for correction of the error in the Departmental file concerning him (as I understood it, the incorrect AFP certificate) had no reasonable prospect of success. That was because the same claim had been advanced and rejected by McKerracher J in Sami v Minister for Immigration and Citizenship [2013] FCA 106 in the context of the applicant’s challenge to the decision cancelling his visa. The Judge set out in [18]-[24] inclusive, passages from the reasons of McKerracher J which indicated that that was so. In addition, the Judge noted that the applicant had advanced the same arguments, again unsuccessfully, in his challenge to the 2005 citizenship application. In this respect, the Judge referred to [16]-[17] in the judgment of Siopis J in Sami v Minister for Immigration and Border Protection [2015] FCA 1496.
29 In relation to the applicant’s claim that he would have satisfied the residency requirement on his first citizenship application had there not been delay in processing his application for a Permanent Spousal Visa, the Judge noted that the delegate had recorded that the earliest possible date on which he could have been granted permanent residency was 15 August 2002. However, by that date, the applicant had been sentenced to imprisonment for the 2001 offences. It was by reason of those convictions that he had been assessed as not satisfying the requirement contained in s 13(1)(f) of the 1948 Act that he be a person “of good character”. This meant that there was no basis in fact or law for asserting that he would have been granted citizenship in 2005 but for the alleged negligence or other errors of the Department.
30 Finally, the Judge noted that the decision on the 2005 citizenship application remained “operative and effective”. The applicant’s attempts to obtain judicial review of that decision had been unsuccessful. The Judge concluded that the proceedings before her would be an abuse of process if intended to be used for the collateral purpose of amounting an attack on the validity of that decision, given the previous proceedings.
Leave to appeal is not required
31 Section 24(1B) of the FCA Act makes the requirement for leave to appeal against an interlocutory judgment imposed by subs (1A) subject to subs (1C).
32 Section 24(1C) provides that leave to appeal is not required for an appeal from two kinds of interlocutory judgment. Relevantly for present purposes, leave to appeal is not required for an appeal from an interlocutory judgment “affecting the liberty of an individual”.
33 As is apparent from the terms of the claim which the applicant made in the originating application, the primary relief which he sought was an order restraining the Department of Home Affairs from continuing to hold him in detention. He also sought an interlocutory order directing the Department to release him from detention pending the determination of his application. At least prima facie, the summary dismissal of those applications is a judgment which affects the applicant’s liberty because their effect was to deny him the release from detention which he sought.
34 In Talacko v Talacko [2010] FCA 239; (2010) 183 FCR 297, Ryan J considered whether an order under s 50 of the Bankruptcy Act 1966 (Cth) restraining a debtor temporarily from travelling overseas was a judgment affecting the liberty of an individual so that leave was not required for an appeal against that order. His Honour referred to a “legislative ancestor” of s 24(1C) in s 1(1)(b) of the Supreme Court of Judiciature (Procedure) Act 1894 (Imp) and the decision of Ormiston JA in Ryan v Attorney-General (Vic) [1998] 3 VR 670. In that case, Ormiston JA had expressed the view that “no niggardly construction should be given to the expression ‘liberty of the subject’, a concept nurtured and protected by the common law for many centuries”, (at 672). Ormiston JA had continued:
But where the order from which the appeal is brought does affect the liberty of the subject, whether by direct incarceration or otherwise or where the order authorises the deprivation of a person’s liberty then, prima facie, the exception should apply to permit appeal without leave. … Moreover … the expression must “be construed to encompass only cases where the personal liberty of the natural person is to be affected by the outcome of the appeal”.
35 In Talacko, Ryan J applied this approach saying:
[43] I consider that a similar approach to the construction of the corresponding new provision in the Federal Court Act compels the conclusion that the exception from the need to obtain leave to appeal is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty.
(Emphasis added)
36 In SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171, Perry J adverted to the question of whether s 24(1C) had the effect that leave was not required for an appeal from a judgment of the FCC summarily dismissing an application for judicial review of a decision of the former Refugee Review Tribunal affirming the refusal of a visa to the applicant, but ultimately did not express a concluded view.
37 It is possible that the term “affecting the liberty of an individual” in s 24(1C) has a narrower connotation than the counterpart term “when the liberty of the subject … is concerned” in s 1(1)(b) of the Supreme Court of Judiciature (Procedure) Act 1894 (Imp) and in s 17A(4)(b)(i) of the Supreme Court Act 1986 (Vic) to which Ryan J referred in Talacko. That is to say, s 24(1C) may be more concerned with the practical impact of the judgment on the liberty of an individual rather than its character in an abstract sense. I doubt that this is an appropriate understanding as it seems improbable that the legislature intended that the question of whether leave is, or is not, required will turn on the close examination of the effect, in fact and in law, of the impact that the judgment in question on an applicant’s liberty. To my mind, it is more natural to understand the term “affecting the liberty of an individual” to mean something like “concerning the liberty of an individual”.
38 The judgment of Davies J of 1 June 2018 answers that description. Accordingly, I consider that the applicant does not require leave to appeal, and may appeal as of right. The only remaining question is whether he should be granted an extension of time in which to do so.
The application for an extension of time
39 On an application for an extension of time, the Court usually has regard to a number of matters, including the length of the extension sought, the reason for the application not being brought within time, the prejudice to the respondent if the extension is allowed, the prejudice to the applicant if the extension is refused, and the justice of the case generally. The latter consideration includes the public interest served by the limitation period in question.
40 In the present case, the period of extension is relatively short (six days) and the Commonwealth does not allege any prejudice to it if the extension is granted.
41 The applicant has not provided in affidavit form any explanation for his delay in bringing the application. Although the applicant is self-represented, his failure to do so cannot be attributed to a lack of awareness of the period of limitation or of the necessity for an explanation. That is because the applicant has in previous proceedings sought an extension of time in which to seek leave to appeal: [2016] FCA 1405. One of the reasons that application failed was the lack of satisfactory explanation by the applicant for the delay which had occurred. His involvement in that litigation means that the applicant can also be taken to have been aware of the importance of time limits. In these circumstances, his failure to provide an explanation for his delay is very pertinent.
42 At the hearing, the applicant proffered the following explanation in his oral submissions. He had, on 13 June 2018, forwarded by facsimile to the Melbourne Registry of the Court, an application for leave to appeal. However, that application was not accepted for filing because the applicant did not provide the necessary supporting affidavit and his proposed draft notice of appeal. The applicant said that he had then prepared an affidavit but had to await the attendance of a Justice of the Peace at the detention centre so that he could make the affirmation. A JP had not attended until 27 June 2018 by which stage he was already out of time.
43 Counsel for the Commonwealth did not contend that the Court should not act on the veracity of that explanation. Although it is unsatisfactory that the applicant did not provide an explanation on his oath, and left the provision of the explanation to the hearing, I am willing to proceed on the basis that the explanation is true.
44 The question of whether the applicant will suffer prejudice if the extension is refused turns very much on the merits of his proposed grounds of appeal. If it can be seen now that those grounds have no prospect of success, the applicant will not be prejudiced by the refusal of the opportunity to argue them. Conversely, if one or more of the grounds is reasonably arguable, the applicant may suffer some prejudice.
45 The grounds in the applicant’s draft notice of appeal are relatively uninformative. They are as follows:
1. The Honourable Federal Court did not take into consideration all relevant facts and laws.
2. The Honourable Federal Court erred in law by taking into consideration irrelevant facts and laws.
3. The Honourable Federal Court erred in law by not applying correctly Federal Court Rules 2011.
4. The Honourable Federal Court erred in law in assessing the case as the Respondent was Department of Home Affairs and not Social Services Department.
5. The Honourable Federal Court erred in law by changing or ignoring a lawful sentence passed by His Honour District Court Judge without proper channels.
46 The applicant’s outline of submissions and his oral submissions at the hearing indicate that he wishes to agitate a complaint based on the time which it took the Department to deal with his application for the Permanent Spousal Visa which was granted on 8 October 2003. As I understood it, the sequence of steps in the applicant’s complaint are these:
(a) by reason of the terms of reg 801.22 in Sch 2 to the Migration Regulations 1994 (Cth) then in force, he had become eligible for the grant of a Permanent Spousal Visa (sometimes referred to in the documents as “Permanent Residence”) two years after the application for a Partner visa made on 15 August 2000;
(b) this had been recognised by the Department in its letter to him of 6 August 2002 in which it was said “it is now time for a decision to be made on your application” (by the same letter, the Department had requested the applicant to provide certain materials, including a certificate from the AFP);
(c) the applicant had provided the requested material in September 2002;
(d) on 23 July 2003, the Department had notified him that his application may be refused on character grounds, under s 501 of the Migration Act;
(e) the decision to grant him the Permanent Spousal Visa was made on 8 October 2003. The Minister’s delegate found, on the basis of the AFP certificate, that he was not of good character, but decided that the residual discretion should be exercised to grant the visa;
(f) section 501(7) as in force between August 2000 and May 2006 provided (relevantly):
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Accordingly, had the AFP certificate not contained the error it did, the issue of whether he satisfied the character test would not have arisen;
(g) the whole period which elapsed between August 2002 and October 2003 should be attributed to the fact that the delegate had, on the basis of the erroneous AFP certificate, considered whether the visa be refused under s 501;
(h) the error in the AFP certificate and the delay in the grant of the Permanent Spousal Visa had a knock on effect in relation to the applicant’s application for citizenship made on 6 January 2005. That application failed because the applicant did not meet the requirements of s 13(1)(e) and (f) of the 1948 Act, namely:
(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
and
(f) the person is of good character.
The term “good character” was not defined in the 1948 Act.
(i) the decision record for the refusal of citizenship in June 2005 showed that the Department considered, having regard to the AFP certificate, that the applicant was not of good character and that he had not been in Australia, as a permanent resident, for the minimum period of two years before 6 January 2005. The applicant claimed that, had he been granted the Permanent Spousal Visa before 6 January 2003, he would have satisfied the requirements of s 13(1)(e) of the 1948 Act.
47 In short, the applicant’s contention is that, had it not been for the mistake in the AFP certificate, his application for a Permanent Spousal Visa would have been granted by the end of 2002, and he would then have satisfied s 13(1)(e) of the 1948 Act. In addition, he would have been found to have satisfied the good character test and so would have been granted Australian citizenship. In those circumstances, the issue concerning the revocation of his visa would not have arisen in 2012.
48 This had the consequence, the applicant claimed, that he was being unlawfully detained. The precise way in which the outlined sequence of events gave rise to jurisdictional error was not explained.
49 However, the applicant submitted, in effect, that it was reasonably arguable that Davies J had erred in failing to find that he had at least a reasonable prospect of successfully prosecuting the claim of jurisdictional error in the way in which the Department had dealt with his application for a Permanent Spousal Visa and, in turn, his application for citizenship.
Consideration
50 One feature of the applicant’s line of reasoning summarised above is that it left unclear the decision or conduct which the applicant sought to impugn. At one stage, it seemed to be the delegate’s decision in 2003 to consider whether the Permanent Spousal Visa should be refused pursuant to s 501. At another stage, the applicant said he wished to review the decisions in 2003 and 2005, which I take to be the decision granting him the Permanent Spousal Visa and the decision refusing him citizenship, respectively.
51 Insofar as the applicant seeks judicial review of the June 2005 refusal of his application for citizenship, it is plain that his application has no reasonable prospect of success. The applicant has already sought, unsuccessfully, judicial review of that decision. Siopis J found that that application had no reasonable prospect of success on essentially three grounds. Two of those were discretionary: the first being the applicant’s delay in bringing the proceedings; the second being that, even if there was some error by the delegate in 2005 and the application was remitted for reconsideration, the application would be bound to fail in any event, given that it would be determined by reference to the law applying, and circumstances existing, at the time of the reconsideration: [2015] FCA 1496 at [13]-[14].
52 In his third reason for dismissing the application, Siopis J addressed the substance of the applicant’s claims. His Honour found that the applicant could not, in the circumstances described above, show jurisdictional error by the delegate.
53 The principle of res judicata means that it is not open to the applicant to seek to re-agitate in these proceedings a challenge to the validity of the 2005 citizenship decision: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. The applicant has exhausted the means of judicial review available to him in relation to that decision. It is not reasonably arguable that Davies J was wrong when she said that it would be an abuse of process if the proceedings are intended as a collateral attack on the validity of the 2005 decision.
54 The applicant does not wish to challenge the validity of the decision granting him the Permanent Spousal Visa. He had been successful with that application.
55 What he does wish to complain about, on judicial review, is the time which elapsed before the delegate made that decision. The applicant faces a number of difficulties with such a complaint. Some are of a factual kind, for example, his contention that it was the incorrect AFP certificate which was the cause, or an operative cause, of the lapse of time.
56 Another, is that the applicant’s complaint centres on the terms of s 501(7)(c) of the Migration Act.
57 It is true that the decision record on 8 October 2003 shows that the delegate had regard to s 501(7)(c). No doubt the delegate thought it was appropriate to do so having regard to the content of the AFP certificate, not having been put on notice that it was incorrect. However, had the certificate been correct, the very same issue considered by the delegate would have arisen by reason of the terms of s 501(7)(d) which, as in force at the relevant time, provided:
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
58 As the applicant had been sentenced to seven different terms of imprisonment, each of nine months, s 501(7)(d) was plainly applicable in his case. The aggregate of the terms for which he had been sentenced in November 2001 was 63 months, well in excess of the two year threshold. That being so, it is difficult to see that the error in the AFP certificate had any material effect. An error which could have made no difference to the outcome is not jurisdictional: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [29]-[31]. The error in 2003 was that, in relying on the AFP certificate which the applicant himself had provided, the delegate had asked the right question (was the applicant of good character) for the wrong reason. Had the delegate asked the same question for the correct reason, that is, under s 501(7)(d), the same issue concerning the applicant’s character would still have arisen.
59 Further, and in any event, the decision record showed that the delegate relied not only on s 501(7)(c) but also on s 501(6)(c)(i). That provision, as in force at the relevant time, provided:
For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) …
the person is not of good character;
60 That is to say, there was evidence that the applicant was not of good character, which did not depend on the precise length of the terms for which he had been sentenced to imprisonment.
61 Even if those issues are put to one side, the applicant’s submissions rested, as an unstated premise, on the proposition that the lapse of time which occurred in 2002-03 is capable now of being subject to a remedy by way of judicial review. That premise is unsound. In 2002-03, as now, the Act did not impose any time limit within which an application for a Permanent Spousal Visa had to be determined. In particular, there was no requirement, as the applicant’s submissions seemed to suppose, that the application be determined forthwith or promptly on the completion of the two year qualifying period.
62 At best for applicant, the Department may have been under an obligation to determine the application within a reasonable time: Koon Wing Lau v Calwell [1949] HCA 65, (1949) 80 CLR 533 at 573-4; CPCF v Minister for Immigration and Border Protection [2015] HCA 1, (2015) 255 CLR 514 at [200], [313], [376], [451]. But the remedy for a failure by an administrative decision-maker to make a decision within a reasonable time is usually an order for mandamus. There is no point to such an order in the present case because the Department did determine the application on 8 October 2003. A remedy on judicial review cannot alter the historical fact that the decision was not made until that time. In particular, it cannot operate to have the decision deemed to have been made at an earlier date.
63 This means that the applicant will not be able to disturb the finding by the Department in May 2005 that he did not have a minimum period of two years permanent residence.
64 Accordingly, it is immaterial whether the reason for the lapse of time lay in the consideration of the erroneous AFP certificate, or in the exigencies caused by the Department’s then caseload.
65 To the extent that the applicant seeks to rely on the lapse of time as part of a challenge to the 2005 decision on his citizenship application, he is precluded from doing so by the principle of res judicata, referred to earlier.
66 In these circumstances, the applicant does not establish any basis upon which it could be concluded that the decision of Davies J is, reasonably arguably, affected by error. Accordingly, he will not be prejudiced by the refusal of an extension of time. Further, it would not be appropriate to grant an extension of time to enable the applicant to argue on appeal grounds which have no prospect of success.
67 That being so, it is unnecessary to consider the applicant’s submission that, if he did succeed in obtaining an order for judicial review and in having the matter remitted, the reconsideration of his citizenship application would be under the 1948 Act and not under the Australian Citizenship Act 2007 (Cth).
Conclusion
68 For the reasons stated earlier, I am satisfied that the applicant does not require leave to appeal. He does, however, require an extension of time in which to appeal, and I will treat his interlocutory application filed on 28 June 2018 as such an application.
69 I consider that the applicant has not shown that the discretion to extend time should be exercised in his favour. The application of 28 June 2018 is accordingly dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. |
