Sami v The Commonwealth of Australia

Background 2 The applicant's case has a lengthy history. The applicant is a citizen of Egypt. He arrived in Australia on 4 June 2000 on a Tourist (Short Stay) (subclass 676) Visa and has remained here since that date. In January 2001 the applicant was granted a Partner (Temporary) subclass 820) Spousal Visa on the basis of his marriage to an Australian citizen. He was granted a permanent visa on 8 October 2003. 3 In the meantime, on 15 November 2001 the applicant was convicted of seven counts of fraud and was sentenced to nine months on each count to be served cumulatively in respect of counts 1 and 3 and concurrently in respect of the other counts. The term of this sentence was suspended for 18 months. 4 In January 2005 the applicant applied for citizenship by conferral under the Australian Citizenship Act 1948 (Cth) ("the 1948 Citizenship Act") ("the first citizenship application"). That application was refused by the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called) ("the Department") in June 2005 on the basis that he did not meet the residential requirements of s 13(1)(d) of the 1948 Citizenship Act nor the good character requirement prescribed by ss 13(1)(e) and 13(1)(f) of the 1948 Citizenship Act by reason of his conviction for fraud in November 2001 ("the 2005 citizenship application decision"). 5 Several challenges have been made by the applicant to the 2005 citizenship application decision and in each instance, the applicant was unsuccessful: see Sami v Minister for Immigration and Border Protection [2015] FCA 1496; Sami v Minister for Immigration and Border Protection [2016] FCA 1405. 6 On 24 October 2005 the applicant again applied for citizenship under the 1948 Citizenship Act. The Department refused this application in May 2006 because of then pending further criminal proceedings against him. 7 On 22 January 2008 the applicant was sentenced to various cumulative and concurrent terms of imprisonment which effectively amounted to a 26 month term of imprisonment in relation to offences of gaining benefit by fraud, attempting to gain benefit by fraud and stealing offences committed between 2005 and 2007. 8 He was subsequently convicted of other offences: (a) on 4 February 2011 he was sentenced to a single term of 20 months imprisonment for six counts of engaging in conduct with the intention of dishonestly obtaining a gain from a Commonwealth entity; (b) on 17 June 2011 he was sentenced to 18 months imprisonment for attempting to obtain a benefit by fraud and various other sentences for fraud related offences to be served concurrently with the sentence of 18 months imprisonment. 9 In March 2012 a delegate of the Minister for Immigration and Citizenship exercised his discretion under subs 501(2) of the Migration Act 1958 (Cth) ("the Migration Act") to cancel the applicant's permanent visa by reason of his conviction on 17 June 2011 for which he was sentenced to 18 months imprisonment ("the cancellation decision"). The cancellation decision was the subject of an unsuccessful challenge by the applicant in the Administrative Appeals Tribunal: Sami and Minister for Immigration and Citizenship [2012] AATA 459. On 21 February 2013 the applicant's application for judicial review was dismissed (Sami v Minister for Immigration and Citizenship [2013] FCA 106 (McKerracher J)) and on 15 November 2013, the Full Court of the Federal Court of Australia (Jagot, Barker and Perry JJ) dismissed an appeal against the decision of McKerracher J (Sami v Minister for Immigration and Citizenship [2013] FCAFC 128.) The applicant's application for special leave to appeal to the High Court was also dismissed: Sami v Minister for Immigration and Citizenship [2014] HCASL 212. 10 On 15 February 2013, following his release from the custody of Western Australia, the applicant was immediately taken into immigration detention pursuant to s 189 of the Migration Act. 11 In these proceedings, the applicant has claimed that he has been detained falsely. He has alleged that the 2005 citizenship application decision wrongly considered his character in determining to refuse his application for citizenship by reason that in the papers before the delegate, a police certificate in relation to his first fraud conviction recorded that he had been convicted of seven counts of fraud and been sentenced to 18 months imprisonment in respect of each count, whereas he was sentenced only to nine months imprisonment in respect of each count. It is alleged that as a result of the error in the certificate the Department wrongly considered the applicant's character in determining that he had failed to satisfy the conditions for the approval of Australian citizenship. It is further alleged that he would have satisfied the residency requirement had a 14 month delay not occurred in granting his permanent residency visa. These two factual allegations found a claim in negligence made by the applicant against the respondent in these proceedings and his entitlement for the relief that he seeks.

applicable principles 12 Section 31A of the Federal Court Act provides as follows: 31A Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 13 The applicable principles for determining an application for summary judgment are set out in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. French CJ and Gummow J stated at [24]-[25]: The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said: "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried". More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. (footnotes omitted) Thus, the Court should not grant summary judgment against an applicant if there are issues of fact or law which are arguable and on which the applicant has more than a "fanciful" prospect of success, even if the Court does not think that the applicant is likely to succeed on such issues. In applying s 31A of the Federal Court Act, the Court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced in order to determine whether the claim is sufficiently strong to warrant a trial.

decision 14 In the present case, the applicant's claims have no reasonable prospects of success. 15 First, the establishment of the claim of negligence will not secure for the applicant the relief that he seeks: namely, his release from detention. The remedy for a claim in negligence is a right to damages. Although he has pleaded an entitlement to damages in the statement of claim, the applicant made it clear during the course of the hearing that he does not seek damages but seeks his removal from detention. If damages was the relief that he sought, the application in any event would have no reasonable prospects of success because of the existence of statutory rights of review which the applicant has already exercised: see Pickering v Centrelink [2008] FCA 561 at [15]-[21]. 16 Secondly, the provisions of the Migration Act permit his detention as an "unlawful non-citizen". 17 The applicant is, by force of law, an "unlawful non-citizen" because his permanent visa was revoked in 2012 and no other visa has been granted to the applicant subsequently: see ss 13, 14 and 15 of the Migration Act; which provide as follows: 13 Lawful non-citizens (1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. (2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen. 14 Unlawful non-citizens (1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. (2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen. 15 Effect of cancellation of visa on status To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect. 18 As an "unlawful non-citizen", it was lawful for him to be placed into detention (s 189(1) of the Migration Act) and pursuant to s 196 of the Migration Act, he must be kept in detention until he is removed under, relevantly, s 198(5) of the Migration Act, or is granted a visa. 19 Sections 189(1) of the Migration Act relevantly provides: 189 Detention of unlawful non-citizens (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. 20 Section 196 of the Migration Act provides: 196 Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) … (b) …; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A) …. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) … (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). 21 Section 198(5) of the Migration Act relevantly provides: 198 Removal from Australia of unlawful non-citizens … (5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa; regardless of whether the non-citizen has made a valid application for a bridging visa. … 22 In light of the applicant's unsuccessful legal challenges to the cancellation of his visa, which have exhausted his legal remedies to set aside the cancellation decision, there is no basis to find that the applicant's detention was not authorised and mandated by ss 189 and 196 of the Migration Act. Upon the cancellation of his visa he became an unlawful non-citizen and, by force of law, must be kept in immigration detention. For completeness I note that the applicant has since applied for a protection visa. That application was refused and the decision affirmed by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia has heard and is reserved on its decision on the applicant's judicial review application of the Tribunal's decision. The fact that the applicant is challenging the refusal of his protection visa is not a basis upon which to remove him from detention as, by force of s 196(4) of the Migration Act, his detention is to continue unless a court finally determines that the detention is unlawful. But I note also, that the respondent has informed the Court that it will not remove the applicant from Australia under s 198(5) of the Migration Act, pending judgment. 23 Thirdly, there is no triable factual issue with respect to the applicant's claim that his character was wrongly considered by the Department in the 2005 citizenship application decision. The same factual issue was advanced and rejected in Sami v Minister for Immigration and Citizenship [2013] FCA 106 in the context of the applicant's challenge to the cancellation decision. The Court held that there was no error in the applicant's record, reasoning at [18]-[24]: 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. 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. 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 501MA. But this fundamental premise of the argument is erroneous. 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. 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. 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. 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. Aside from the evident correctness of that decision, more particularly, the applicant unsuccessfully advanced the same arguments in his challenge to the 2005 citizenship application decision: Sami v Minister for Immigration and Border Protection [2015] FCA 1496 at [16]-[17] where the Court stated: 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. 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. The Court found no error by the delegate in making the 2005 citizenship application decision. The applicant has exhausted his appeal rights from that decision and is bound by that decision. 24 Fourthly, whilst the applicant has alleged that he would have satisfied the residency requirement for his first citizenship application had there not been a delay in processing the applicant's permanent residence visa, the delegate's decision on the first citizenship application recorded that the earliest possible date that he could have been granted permanent residency was 15 August 2002. By then, the applicant had been sentenced to 18 months imprisonment for the 2001 offences by reason of which he was assessed as not passing the character test. There is no basis in fact or law for asserting that the applicant would have been granted citizenship in 2005 but for the alleged errors or negligence on the part of the Department. 25 Fifthly, the 2005 citizenship application decision remains operative and effective. It is an abuse of process if these proceedings are otherwise intended to be used for the collateral purpose of mounting an attack on the validity of that decision, which has been the subject of prior judicial decisions. 26 Accordingly, I conclude that the proceeding has no reasonable prospects of success and the originating application and the applicant's interlocutory application should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.