Sami v Commonwealth of Australia - [2018] FCA 1991

FEDERAL COURT OF AUSTRALIA
Sami v Commonwealth of Australia [2018] FCA 1991

Appeal from: Application for extension of time and leave to appeal: Sami v The Commonwealth of Australia [2018] FCA 800

File number: VID 777 of 2018

Judge: WHITE J

Date of judgment: 11 December 2018

Catchwords: MIGRATION – application for an extension of time and leave to appeal from the summary dismissal of an application for judicial review and orders for the applicant’s release from detention – judgment affected the applicant’s liberty – by reason of s 24(1C) of the Federal Court of Australia Act 1976 (Cth) leave to appeal not required – application for an extension of time in which to appeal refused.

Legislation:
Australian Citizenship Act 1948 (Cth) s 13

Australian Citizenship Act 2007 (Cth)

Bankruptcy Act 1966 (Cth) s 50

Federal Court of Australia Act 1976 (Cth) ss 24, 31A

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 13‑15, 189(1), 196, 198(5), 501

Federal Court Rules 2011 (Cth) rr 35.13(a), 36.03

Migration Regulations 1994 (Cth) reg 801.22 in Sch 2

Supreme Court Act 1986 (Vic) s 17A(4)(b)(i)

Supreme Court of Judiciature (Procedure) Act 1894 (Imp) s 1(1)(b)

Cases cited:
CPCF v Minister for Immigration and Border Protection [2015] HCA 1, (2015) 255 CLR 514

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Koon Wing Lau v Calwell [1949] HCA 65, (1949) 80 CLR 533

Pickering v Centrelink [2008] FCA 561

Ryan v Attorney‑General (Vic) [1998] 3 VR 670

Sami v Minister for Immigration and Border Protection [2015] FCA 1496

Sami v Minister for Immigration and Border Protection [2016] FCA 1405

Sami v Minister for Immigration and Citizenship [2012] AATA 459

Sami v Minister for Immigration and Citizenship [2013] FCA 106

Sami v Minister for Immigration and Citizenship [2013] FCAFC 128

Sami v Minister for Immigration and Citizenship [2014] HCASL 212

Sami v The Commonwealth of Australia [2018] FCA 800

SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171

Talacko v Talacko [2010] FCA 239; (2010) 183 FCR 297

Date of hearing: 15 November 2018

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 69

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr CM McDermott

Solicitor for the Respondent: Australian Government Solicitors

Table of Corrections

10 January 2019 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

VID 777 of 2018

BETWEEN:
TONY SAMI

Applicant

AND:
COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

11 DECEMBER 2018

THE COURT ORDERS THAT:
1.The Applicant’s application of 28 June 2018 for an extension of time to seek…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 1991
Decision Date: 11 December 2018

CaseChat Overview and Summary

In the case of Sami v Commonwealth of Australia, the applicant, Sami, sought an extension of time and leave to appeal from the summary dismissal of an application for judicial review and orders for his release from detention. The Federal Court was called upon to decide whether leave to appeal was required and if an extension of time for the appeal should be granted.

The legal issues before the court involved the interpretation of section 24(1C) of the Federal Court of Australia Act 1976 (Cth) which provides that leave to appeal is not required if the judgment affected the applicant's liberty. The court also had to consider whether there was a reasonable prospect of success for the applicant's claims, which included allegations of wrongful detention, negligence by the Department, and an error in the Australian Federal Police certificate. The applicant argued that these issues made his detention unlawful and sought damages.

The court held that leave to appeal was not required under section 24(1C) of the FCA Act because the judgment affected Sami's liberty. However, the court dismissed the application for an extension of time to appeal. The court found that the applicant's claims had no reasonable prospect of success due to various reasons, including the availability of statutory rights of review, the legality of the applicant's detention under the Migration Act, and the principle of res judicata which precluded the re-litigation of the 2005 citizenship decision.

The court's reasoning was grounded in the principles of statutory interpretation, the doctrine of precedent, and the availability of alternative legal remedies. The applicant's claims were deemed to be without merit because they either had already been decided in previous proceedings or were not supported by the law. The court concluded that the applicant had not demonstrated that the judge had erred in dismissing his claims.

1. The Applicant’s application of 28 June 2018 for an extension of time to seek leave to appeal is dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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. 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]. 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. 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.

Ratio Decidendi

Legal Principle Established

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 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. 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]. 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. 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. 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. 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.

Appeal from:	Application for extension of time and leave to appeal: Sami v The Commonwealth of Australia [2018] FCA 800
File number:	VID 777 of 2018
Judge:	WHITE J
Date of judgment:	11 December 2018
Catchwords:	MIGRATION – application for an extension of time and leave to appeal from the summary dismissal of an application for judicial review and orders for the applicant’s release from detention – judgment affected the applicant’s liberty – by reason of s 24(1C) of the Federal Court of Australia Act 1976 (Cth) leave to appeal not required – application for an extension of time in which to appeal refused.
Legislation:	Australian Citizenship Act 1948 (Cth) s 13 Australian Citizenship Act 2007 (Cth) Bankruptcy Act 1966 (Cth) s 50 Federal Court of Australia Act 1976 (Cth) ss 24, 31A Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 13‑15, 189(1), 196, 198(5), 501 Federal Court Rules 2011 (Cth) rr 35.13(a), 36.03 Migration Regulations 1994 (Cth) reg 801.22 in Sch 2 Supreme Court Act 1986 (Vic) s 17A(4)(b)(i) Supreme Court of Judiciature (Procedure) Act 1894 (Imp) s 1(1)(b)
Cases cited:	CPCF v Minister for Immigration and Border Protection [2015] HCA 1, (2015) 255 CLR 514 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 Koon Wing Lau v Calwell [1949] HCA 65, (1949) 80 CLR 533 Pickering v Centrelink [2008] FCA 561 Ryan v Attorney‑General (Vic) [1998] 3 VR 670 Sami v Minister for Immigration and Border Protection [2015] FCA 1496 Sami v Minister for Immigration and Border Protection [2016] FCA 1405 Sami v Minister for Immigration and Citizenship [2012] AATA 459 Sami v Minister for Immigration and Citizenship [2013] FCA 106 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 Sami v Minister for Immigration and Citizenship [2014] HCASL 212 Sami v The Commonwealth of Australia [2018] FCA 800 SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171 Talacko v Talacko [2010] FCA 239; (2010) 183 FCR 297
Date of hearing:	15 November 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	69
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr CM McDermott
Solicitor for the Respondent:	Australian Government Solicitors

Table of Corrections
10 January 2019	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”.