FEDERAL COURT OF AUSTRALIA
Sami v Minister for Home Affairs [2022] FCA 1513
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Details
- Case
- [2022] FCA 1513
- Decision Date
CaseChat Overview and Summary
In the case of Sami v Minister for Home Affairs, the applicant, Mr Sami, sought habeas corpus, mandatory injunction, and declaratory relief, contending that his detention under the Migration Act was unlawful as there was no real prospect of his removal from Australia in the reasonably foreseeable future. The court was bound by the decision in Al-Kateb v Godwin, which held that the court cannot compel the government to remove a non-citizen from Australia. The primary legal issue before the court was whether Mr Sami's detention was lawful, and if not, whether the court could compel his removal.
The court considered the statutory framework of the Migration Act, particularly sections 196 and 198, which mandate the detention of unlawful non-citizens until they are removed or granted a visa. Despite the statutory provisions, the court found that Mr Sami's detention was lawful because it continued for the purpose of his removal, as per the decision in Applicant S4/2014 v Minister for Immigration and Border Protection. The court held that the principle of legality did not compel a different interpretation of the detention provisions, rejecting Mr Sami's argument that Al-Kateb was wrongly decided. The court concluded that Mr Sami's detention remained lawful as there was no real prospect of his removal, but this did not render his detention unlawful.
Based on the above reasoning, the court dismissed Mr Sami's application for habeas corpus, mandatory injunction, and declaratory relief. The court found that Mr Sami's detention was lawful, and it could not compel his removal from Australia. The proceedings were dismissed, and the parties were directed to file their submissions on costs within the specified timeframe.
The court considered the statutory framework of the Migration Act, particularly sections 196 and 198, which mandate the detention of unlawful non-citizens until they are removed or granted a visa. Despite the statutory provisions, the court found that Mr Sami's detention was lawful because it continued for the purpose of his removal, as per the decision in Applicant S4/2014 v Minister for Immigration and Border Protection. The court held that the principle of legality did not compel a different interpretation of the detention provisions, rejecting Mr Sami's argument that Al-Kateb was wrongly decided. The court concluded that Mr Sami's detention remained lawful as there was no real prospect of his removal, but this did not render his detention unlawful.
Based on the above reasoning, the court dismissed Mr Sami's application for habeas corpus, mandatory injunction, and declaratory relief. The court found that Mr Sami's detention was lawful, and it could not compel his removal from Australia. The proceedings were dismissed, and the parties were directed to file their submissions on costs within the specified timeframe.
Orders
Orders of the court
1. The application for the issue of a writ of habeas corpus, alternatively mandatory injunction, be refused.
2. The application for declaratory relief be refused.
3. The proceeding be dismissed.
4. Any submissions on costs of the proceeding are to be filed on or before 23 December 2022, on the basis of a fixed lump sum, and are to be no more than 5 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the evidence comfortably persuades me that findings of fact should be made on the evidence which support the case sought to be made by Mr Sami. That is irrespective of which of the two competing approaches to the prospects of removal is adopted.BACKGROUNDMr Sami’s arrival in Australia and the circumstances of his detention Mr Sami arrived in Australia in June 2000, on an Egyptian passport, having been granted a tourist visa. He married an Australian citizen and was granted a partner visa conferring permanent resident status in October 2003. Over the following years, Mr Sami was convicted of a number of offences involving fraud or dishonesty, and sentenced to terms of imprisonment. Pursuant to s 501 of the Migration Act, a delegate of the Minister for Immigration and Citizenship cancelled Mr Sami’s visa in March 2012, rendering Mr Sami an unlawful non-citizen for the purposes of the Act. Accordingly, upon his release from criminal custody on 15 February 2013, Mr Sami was detained under s 189 of the Migration Act, pending his removal from Australia. Mr Sami has resisted removal from Australia, and has pursued a number of legal options open to him. He has remained in immigration detention since February 2013.Mr Sami’s legal proceedings Mr Sami applied to the Administrative Appeals Tribunal in March 2012 for a review of the delegate’s decision to cancel his visa. The Tribunal affirmed the delegate’s decision: Sami and Minister for Immigration and Citizenship [2012] AATA 459. Mr Sami’s applications for judicial review were dismissed by the Federal Court and the Full Court of the Federal Court: Sami v Minister for Immigration and Citizenship [2013] FCA 106; Sami v Minister for Immigration and Citizenship [2013] FCAFC 128. On 10 December 2014, the High Court refused special leave to appeal from the Full Court’s decision: Sami v Minister for Immigration and Citizenship [2014] HCASL 212. Mr Sami has also been unsuccessful in his applications for a protection visa, which commenced in March 2013. This first application was refused by the delegate, and the Tribunal affirmed this refusal on review. The (then) Federal Circuit Court set aside the Tribunal’s decision and remitted Mr Sami’s application to the Tribunal. However, the Tribunal affirmed the delegate’s decision again, and Mr Sami’s subsequent application for judicial review was dismissed by the Federal Circuit Court on 21 August 2018. Mr Sami also commenced several proceedings in relation to applications he made in 2005 to become an Australian citizen. He was unsuccessful in each of these proceedings: see Sami v Minister for Immigration and Border Protection [2015] FCA 1496; Sami v Minister for Immigration and Border Protection [2016] FCA 1405; Sami v Commonwealth of Australia [2018] FCA 800. On 11 December 2018, White J dismissed Mr Sami’s application for an extension of time to seek leave to appeal from the Court’s decision to summarily dismiss his application for judicial review of the refusal of his 2005 citizenship applications: Sami v Commonwealth of Australia [2018] FCA 1991. Some of these proceedings also sought relief that would result in Mr Sami being released from detention. It appears that a subsequent application for leave to appeal to the High Court was rejected on 7 January 2019.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 196 provides for the continuing mandatory detention of an unlawful non-citizen:(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)an officer begins to deal with the non‑citizen under subsection 198AD(3); or(b)he or she is deported under section 200; 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)Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.(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)Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.(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). Section 198 sets out the circumstances in which an unlawful non-citizen must be removed from Australia. Relevantly to Mr Sami’s circumstances, it provides:(6)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:(a)the non‑citizen is a detainee; and(b)the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and(c)one of the following applies:(i)the grant of the visa has been refused and the application has been finally determined;(ii)the visa cannot be granted; and(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone. Mr Sami submits that, at least after early January 2019, the only purpose for which he could be detained under the Migration Act is to remove him from Australia, relying on Applicant S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219. He contends that, where there is no real likelihood of him being removed from Australia in the reasonably foreseeable future, his detention is not for the purpose of removal, relying on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 33. Mr Sami submits that this conclusion follows from the proper construction of the relevant provisions of the Act, informed by the principle of legality in the manner explained by Gleeson CJ in Al-Kateb at [18]-[22] and by Gummow J at [122]. He contends the Full Court in Al Masri correctly construed these statutory provisions, to the same effect as the minority in Al-Kateb. This submission, founded in a constructional choice about the operation of the detention provisions in the Migration Act, is the first and primary basis on which he contends Al-Kateb is wrongly decided.
Ratio Decidendi
Legal Principle Established
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