Sami, In the matter of an application for leave to issue or file

[2019] HCATrans 86

[2019] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P13 of 2019

In the matter of -

an application by TONY SAMI for leave to issue or file

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 30 APRIL 2019, AT 10.33 AM

Copyright in the High Court of Australia

HER HONOUR:   On 19 February 2019, the applicant filed an ex parte application for leave to issue or file a writ of summons with a statement of claim.  An affidavit affirmed by the applicant, in support of the application for leave to issue or file, was also filed. 

On 24 January 2019, Nettle J had directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the writ of summons was not to be issued or filed without leave of a Justice first being had and obtained by the applicant. This is that application.

For the reasons that I now publish, I would refuse the application for leave to issue or file the writ of summons and statement of claim.  I direct that the reasons as published be incorporated into the transcript.

I publish those reasons.

This is an ex parte application for leave to issue or file a writ of summons with a statement of claim. On 24 January 2019, Nettle J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), the writ of summons was not to be issued or filed without leave of a Justice first being had and obtained by the applicant. This is that application. An affidavit affirmed by the applicant, in support of the application for leave to issue or file, was also filed. The following history of the matter is extracted from the affidavit and the documents exhibited to that affidavit.

The applicant arrived in Australia in June 2000 on a visitor visa.  He married an Australian citizen in July 2000 and applied for a combined spouse (Class UK, Subclass 820/Class BS, Subclass 801) visa in August 2000.  He was granted a temporary (Subclass 820) visa on 29 January 2001. 

On 15 November 2001, the applicant was convicted of seven counts of fraud in the District Court of Western Australia at Perth and sentenced to nine months’ imprisonment on each count.  The sentence imposed by the District Court on counts 1 and 3 was cumulative, with the balance of the sentence to be served concurrently.  The sentence of 18 months was suspended for 18 months. 

On 6 August 2002, the applicant was sent a letter from the then Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) in relation to his application for a permanent spouse visa.  The letter informed the applicant that it was not possible to grant him permanent residence less than two years from the date of his application and in processing that application, the Department requested specific documents.  One of the documents requested was an “Australian Federal Police (AFP) clearance”.  The applicant obtained a certificate from the AFP.  The certificate included the following statement: 

“Fraud (7 charges)   On each charge 18 Months Imprisonment Concurrent.  Sentence suspended for 18 Months.” 

On 8 October 2003, the applicant’s permanent Partner (Class BS, Subclass 801) visa was granted. A delegate of the Minister of the Department decided that, although the applicant did not pass the character test within the meaning of s 501(6)(a) and (c)(i) of the Migration Act 1958 (Cth), in the exercise of their discretion, they decided not to refuse the grant of the visa. 

The applicant made, at least, one application for Australian citizenship.  One application was refused in June 2005 on two grounds − the applicant did not meet the residential requirement in s 13(1)(e) or the good character requirement in s 13(1)(f) of the Australian Citizenship Act 1948 (Cth). There is nothing to suggest that the applicant sought review of that decision at that time.

Finally, the documents record that although the applicant had no fraud or dishonesty convictions between November 2001 and January 2008, subsequently, he was convicted and imprisoned for engaging in fraudulent activities from about 2004 up to and including 2009.  The documents record that the applicant re‑offended whilst he was on parole and after receiving a formal counselling letter in which he was warned about the cancellation provisions in migration legislation and the possible consequences should he commit further offences. 

By March 2012, the applicant had lived in Australia for 11 years, of which approximately three years and three months had been spent in prison.  At that time, the applicant was in prison and separated from his wife. 

On 20 March 2012, a delegate of the Minister decided that they reasonably suspected that the applicant did not pass the character test and decided to exercise their discretion under s 501(2) of the Migration Act to cancel the applicant’s Partner (Class BS, Subclass 801) visa. 

On 15 February 2013, the applicant was detained under s 189 of the Migration Act. The applicant’s proposed statement of claim contends that the proposed defendant, the Commonwealth of Australia, “erred in assessing the applicant’s application for a Spousal Permanent Resident [visa], and his application for Australian Citizenship”, events that occurred between 2002 and 2005. The proposed statement of claim also seeks to challenge the legality of the decision to detain him under s 189 of the Migration Act, although that claim appears to have been abandoned by the applicant in the affidavit filed by him in support of this application.  The proposed statement of claim then seeks unparticularised relief for wrongful detention, loss of income, pain and suffering, and mental and physical health issues. 

Each of the purported errors relied upon by the applicant in the proposed statement of claim proceeds from the premise that in 2001 the applicant was not sentenced to a term of imprisonment of 12 months or more.  That premise is contrary to the facts.  The applicant was sentenced to a term of imprisonment of 18 months. 

The writ of summons does not disclose a cause of action, is an abuse of the process of the Court and otherwise does not comply with the requirements of Pt 27 of the High Court Rules.  The ex parte application for leave to issue or file the writ of summons and the statement of claim is refused.

In matter P13 of 2019, the order of the Court is:

1.The application for leave to issue or file the writ of summons and statement of claim is refused.

I publish that order. 

Adjourn the Court.

AT 10.34 AM THE MATTER WAS CONCLUDED