Sami v Minister for Immigration and Border Protection

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. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.