Sami v Minister for Immigration and Citizenship

GROUNDS OF REVIEW 6 The grounds of review are expressed by Mr Sami in his 'Notice of Appeal' filed 18 July 2012 as follows: Questions of Law 1. DIAC unlawfully delayed my Permanent Resident and Citizenship Grant because of a mistake made by DIAC. 2. The Tribunal ignored a Consent Order issued by another Honorable Court namely Family Court of WA on the 15/10/2002 which allow me access to visit and call my children. 3. Accepted evidence by my estranged wife knowingly that there is a custody battle between her and me and she in breach of Consent Order which make her (Hostile Witness). 4. The Tribunal allowed into evidence an unlawfully obtained documents. 5. Tribunal ignore section 205 point 2 of the Immigration Act 1958. 6. Ignored the fact that Fraud is not in the list of Crimes to be considered in the Direction 41 under section 501 of the Immigration Act. 7. Ignored the fact that DIAC obtained illegal information. 8. Ignored Human Rights and Equal Opportunity Act 1986. 9. Did not accept my claim of torture (Australian Refoulement Obligation). 10. Ignored my Mental Health Issues in the Contrary of the Mental Health Act. 11. Ignored the Convention of the rights of the child A/RES/44/25 (12/12/89) Findings of fact that the Court is asked to make 1. My sentence in 2001 is 9 months on each charge and not 18 month. 2. Fraud is not in the list of Serious crimes in direction 41. 3. There no definition for "Serious Theft" in direction 41.

JURISDICTIONAL QUESTIONS 7 The jurisdiction to be exercised on a review of the decision of the Tribunal of the present nature is that conferred by s 476A(1)(b) and s 476A(2) MA which relevantly provide as follows: 476A Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: … (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or … (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. 8 The first respondent (the Minister) correctly submits that the Tribunal's decision is a 'privative clause decision' within the meaning of s 474 MA which provides as follows: 474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), ... (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. … 9 The jurisdiction of the Court in relation to the Tribunal's decision is therefore the same as that of the High Court under para 75(v) of the Constitution as expressed by s 476A(2) MA. 10 Jurisdiction exists to grant 'constitutional writs' in cases of jurisdictional error where there has been jurisdictional error committed by an applicable officer of the Commonwealth. The Deputy President in exercising a merits review was an 'officer of the Commonwealth'.

THE TRIBUNAL'S DECISION 11 The Deputy President identified the evidence before the Tribunal, summarised Mr Sami's criminal history and cited various extracts of sentencing remarks made by a number of Western Australian sentencing judicial officers including Sleight DCJ on 22 January 2008, Magistrate Randazzo on 4 February 2011 and Macknay DCJ on 17 June 2011. Against that backdrop, the Deputy President also addressed the oral evidence of other witnesses and other material before the Tribunal including various pre-sentence reports, psychological and psychiatric reports and parole assessment report prepared by the Department of Corrective Services and dated 18 April 2012. 12 Mr Sami had the benefit of experienced legal representation before the Tribunal which assisted in the presentation of his application. With the assistance of that legal representation, it was accepted as common ground that Mr Sami did not pass the 'character test' under s 501(7) MA. Section 501 MA relevantly provides as follows: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister - natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) … (b) … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (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 (e) ... … 13 The Deputy President found that by reason of the fact that Mr Sami had 'been sentenced to a term of imprisonment of 12 months or more', most recently on 17 June 2011, he had a 'substantial criminal record' as defined in s 501(7) MA and that by reason of s 501(6)(a) MA he did not pass the 'character test'. Therefore, it followed and it was common ground that because Mr Sami could not pass the character test, the discretionary power to cancel his visa was enlivened. 14 The function performed by the Deputy President in his merits review was that of undertaking a fresh exercise of jurisdiction to cancel or to decline to cancel Mr Sami's visa. Section 499(2A) MA also required that there be compliance with the relevant Direction of the Minister given on 3 June 2009 which commenced operation of 15 June 2009. The Direction which was the subject of analysis in the Tribunal and on the appeal before me was 'Direction No 41 - Visa Refusal and Cancellation under Section 501'. This Direction which was referred to and applied by the Deputy President to the extent relevant to this application, is annexed to these reasons (with footnotes omitted) as Annexure A. 15 The Deputy President made various factual findings about the respective primary considerations and other considerations as described in Direction 41. He took an overall assessment of the considerations and reached a conclusion that on balance the primary considerations clearly weighed in favour of cancelling the visa. 16 The Deputy President expressed the view that having considered all of the circumstances of the case, Mr Sami remaining in Australia would present an unacceptable risk of harm being caused to the Australian community from serious criminal activity on his part. Accordingly, he concluded that the preferable decision in the case before the Tribunal was that the visa be cancelled pursuant to s 501(2) MA. 17 It followed that the Delegate's Decision, which was being reviewed, was affirmed.

The error in his record 18 Central to the arguments advanced by Mr Sami was the complaint that a police report provided to the Delegate wrongly records that he was sentenced to 18 months on each conviction rather than 9 months. In 2001 he was sentenced on seven fraud charges to nine months imprisonment on each charge. However, two of the sentences were cumulative and the balance concurrent. The sentence was suspended for 18 months. 19 The two charges of nine months being cumulative clearly means that he was sentenced to a term of imprisonment for 18 months. This is in excess of the 12 month yardstick for the character test. 20 While it is true that there is an error in the police report as to the length of the individual sentences, the error made no difference to the cumulative effect of the sentences. Mr Sami says that as the sentences were only nine months, he was only ever sentenced for nine months and was not, therefore, liable for consideration under s 501 MA. But this fundamental premise of the argument is erroneous. 21 In any event, it was common ground before the Tribunal that Mr Sami failed the 'character test', whether it be on the initial offences or the subsequent offences which also meant he failed the character test. Once there was that failure, the discretion was opened up. 22 Counsel for Mr Sami made it quite clear at the hearing that there was no debate about the issue. Counsel was entirely correct to concede this point. It was clear from the sentencing remarks of Hammond CJDC that the sentencing on two of the nine month sentences was cumulative, not concurrent. They were to be served one after the other, totalling 18 months. 23 Further, the error in the police report was made clear before the Tribunal. The Tribunal was in no doubt as to the nature of that error. 24 Further, it did not matter whether the Tribunal relied upon the original offences or the totality of the subsequent convictions. (Section 501(7) MA refers to cumulative terms of imprisonment for two or more offences to two years or more. This requirement was also satisfied.) The character test clearly failed as counsel for Mr Sami conceded. 25 Mr Sami suggested that if the record had not been incorrect, then he would not have been at risk of not being awarded Australian citizenship. This was not an issue arising before the Tribunal or properly on judicial review. The question on judicial review is whether the Deputy President properly exercised jurisdiction within the statutory framework.

His ex-wife giving evidence 26 Mr Sami also contended on appeal that his ex-wife should not have been permitted to give evidence and to do so was a jurisdictional error. There were two aspects to this contention. The first was that the evidence included reliance on a medical discharge summary document. The second aspect of this complaint was that the ex-wife should not have given evidence or been permitted to give evidence because she had previously indicated a disinclination to do so. The second aspect can be disposed of immediately. There can be any number of reasons a reluctant witness can nevertheless be called to give evidence. Many witnesses do not particularly wish to be giving evidence but are obliged to do so.

Unauthorised use of a discharge summary 27 The discharge was relied upon (amongst other evidence) in rejection of the credibility of Mr Sami concerning his claims of torture and ill treatment were he returned to Egypt. Mr Sami's ex-wife expressed the view that Mr Sami was 'delusional and a compulsive liar'. The Deputy President noted that the discharge summary attached to the ex-wife's letter, and signed by a consultant psychiatrist and psychiatric registrar read as follows: … His presentation was characterised by strong narcissistic traits and some anti-social traits as well. He was found to be lying about many details. 28 Mr Sami said he had given no permission for this form to be released by the medical practitioner. Despite this, the medical practitioner's opinion was open to be admitted to the Tribunal where strict rules of evidence do not bind the decision-maker. The relevant discharge form had been annexed to a statement given by the ex-wife who was called to give evidence and who was available for cross-examination. It must also be said that there was an extremely significant body of material including sentencing remarks of various judicial officers, various other psychiatric reports, all of which were in evidence and which pointed to a similar conclusion in relation to Mr Sami's credibility. There is no doubt that there was ample material on which the conclusion reached by the Deputy President could be reached even entirely excluding the discharge summary and the ex-wife's letter to which objection is now taken. 29 Use of such a discharge summary without the patient's approval may well present difficulties in certain circumstances but in this instance it was one of a very large body of material all pointing in the same direction. If everything in that material was excluded from consideration, it is almost impossible to consider that a different conclusion could have been reached concerning Mr Sami's credibility. 30 More significantly, no objection was taken in the hearing, again, by experienced counsel to the admissibility of the discharge summary.

The rights of the child - unavailability of his son to give evidence 31 Complaint was also raised by Mr Sami about the Tribunal precluding him the opportunity to call his eldest son to give evidence. Of course this could be an important consideration in an appropriate case due to the need to consider the interests of the child. Mr Sami argued that by not having his son give evidence, the Deputy President failed to consider his best interests. However, this is incorrect. The childrens' best interests were expressly evaluated but considered insufficient to displace those factors supporting the Delegate's decision. 32 At the hearing before the Tribunal, counsel for Mr Sami gave no indication to the Tribunal, doubtless on instructions, of any desire on the part of Mr Sami to seek to call evidence from his eldest son. It is impossible in those circumstances to successfully argue that there was jurisdictional error by denying Mr Sami an opportunity to lead evidence that might have been relevant but was not mentioned by Mr Sami or his counsel. Such a point simply did not arise.

Fraud 'not serious' 33 Mr Sami also argued that fraud is not on the list of offences considered 'serious' in Direction No 41, nor does it contain a definition of serious theft. This submission must also be rejected. It cannot be said that offences simply involving fraud and theft are not of a serious nature. The list of offences contained in Direction No 41 is by way of example and is not an exhaustive list. It is clear, however, that the paragraph does include some serious offences against property including 'serious theft'. Any suggestion that Mr Sami has not been convicted of offences involving 'serious theft' is unrealistic. His fraud convictions and sentences together with the sentencing remarks made put such a suggestion into the realm of the fanciful. 34 As the Deputy President noted, Mr Sami's criminal history in this country comprises convictions of 49 offences from May 2001 to September 2008 - September 2009. On those offences for which he had most recently been sentenced above, he had a 'substantial criminal record' within the statutory meaning and therefore did not pass the 'character test' all of which was conceded in the hearing before the Tribunal. Mr Sami has been sentenced to more than two terms of imprisonment where the total of the terms is more than two years. That also means that he does not pass the 'character test'.

Merits Review 35 The balance of the submissions raised by Mr Sami both orally and in writing, went essentially to impermissible merits review. The summary extracted from his written submissions (at [28]) is indicative of this (having regard to the issues of principle which might be considered on judicial review and which have been discussed above): AT the end I would like to conclude the reasons of why my application should be successful: • I am very sorry and remorseful for the crimes I committed and have taken every possible steps to rehabilitate myself. • If DIAC would not made this mistake in 2001 & 2005 I should be granted Citizenship. • My crime are not of violent or drug related nature. • There is no definition of "Serious Theft" and my crime does not mount to "Serious Theft". • My children are Australian Citizens and they have the right to grow up like any other Australian Children with their father. • Deporting me put Australia in violation of its International Obligations, as well as the ICCPR and the CAT prohibition against Refoulment. • I will be facing certain death and torture on the hand of the Egyptian Government if I would go back to Egypt. • The Cost of facilitating contact between me and my children would be significant and there a real chance I am not going to see them again as my ex wife gave evidence that she will not taking the children to Egypt. • I have no family left in Egypt after my late sister death and I don't have any friends or any other family member. • My age and my health will refrain me from starting all over again in Egypt. • Deporting me would violate every Human Rights laws denying my children the privilege to grow up and experience the existence and love of a father, and stripping a father of his children.

SUMMARY 36 As indicated in the last paragraph, the case which Mr Sami seeks to advance by way of judicial review is, with the exception of those arguments to which I have referred, in substance, an invitation for the Court to reach different factual findings or a different overall conclusion from that reached by the Deputy President. 37 The analysis by the Deputy President was measured and attentive to the arguments advanced for Mr Sami. As to the claims about facing death and torture by the Egyptian Government because of his political beliefs if he were returned to Egypt, those were addressed extensively by the Deputy President. The Deputy President was entitled to reject Mr Sami's evidence in support of those claims and it was entirely open to him to reach the conclusions that he did.

CONCLUSION 38 For the foregoing reasons, the application for review must be dismissed. Mr Sami is to pay the costs of the Minister, to be taxed if not agreed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 21 February 2013 ANNEXURE A … 5 Preamble 5.1 Objectives (1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. (2) In that regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. (3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled. 5.2 General Guidance (1) To facilitate these objectives, this Direction provides direction to decision-makers with respect to performing functions and exercising powers under section 501 of the Act. The Direction is binding on all decision-makers. (2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider: (a) the nature of any harm that the person concerned may cause to the Australian community; and (b) the risk of the harm occurring. (3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations. … PART A - Application of the character test 7. Overview of the character test (1) A visa may be refused if the person does not satisfy the Minister that the person passes the character test. A visa may be cancelled if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that they pass the character test. (2) The character test is set out in section 501(6) of the Act and it provides that a person does not pass the character test in certain, specified, circumstances. Those circumstances are discussed in further detail below. 7.1 Substantial criminal record (1) A person does not pass the character test if the person has a substantial criminal record. The term 'substantial criminal record' is defined in section 501(7) of the Act. … PART B - EXERCISING THE DISCRETION 8. When to exercise the discretion (1) If, following formal consideration, the person does not satisfy the decision-maker that the person passes the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa. 9. Taking the relevant considerations into account (1) Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant. … 10. The primary considerations (1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered: (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and (d) relevant international obligations, including but not limited to: (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 10.1 Protection of the Australian community (1) Due consideration is to be given to the Government's objectives set out in Part 1, paragraph 5 of this Direction. (2) The factors relevant to assessing the level of risk of harm to the community of the person's entry or continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. 10.1.1 The seriousness and nature of the conduct (1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community. (2) The following are examples of the offences and conduct that are considered serious: (a) murder, manslaughter, or any other form of unlawful killing; (b) all offences perpetrated against a child (particularly sexually-based offences; (c) rape and any other sexually-based offences; (d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction); (e) robbery; (f) the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs; (g) terrorist activity; (h) people smuggling, trafficking and/or harbouring or concealing; (i) ancillary offences in respect of offences and conduct that are considered serious, including: (i) convictions for attempting to commit an offence; (ii) convictions for conspiracy to commit an offence; and (iii) convictions for being an accessory before or after the fact in respect of an offence. (j) organised criminal activity resulting in a conviction in Australia or elsewhere; (k) arson; (l) blackmail and/or extortion; and (m) serious theft. … (3) The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community. Due regard must be given to the extent of the person's criminal record, including: (i) the number and nature of offences; (ii) the period between offences; and (iii) the time elapsed since the most recent offence. (4) The following factors are also to be considered: (a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual's case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment; (b) any relevant factors the person provides as mitigating factors; … 10.1.2 The risk that the conduct may be repeated (1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending. (2) The following factors are to be considered as particularly relevant to this assessment: (a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending; (b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and (c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts. … 10.4 International obligations (1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child. (2) Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered. 10.4.1 The best interests of the child (1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made. (2) The best interests of the child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction. … 10.4.3 Other relevant international obligations (1) The following are to be considered: (a) The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman, or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol); (b) The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and (c) The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT. 11. Other considerations (1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered. (2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations. (3) … (e) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia. … (emphasis added)