Tony Sami and Minister for Immigration and Citizenship
[2013] AATA 445
[2013] AATA 445
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2573
Re
Tony Sami
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Professor R M Creyke, Senior Member
Date 27 June 2013 Place Perth The application for an extension of time is refused.
................................[SGD R Creyke]........................................
Professor R M Creyke, Senior Member
Catchwords
IMMIGRATION AND CITIZENSHIP – extension of time – whether length of delay acceptable - whether acceptable explanation for delay –whether merits of claims warrant grant of an extension of time
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)
Australian Citizenship Act 1948 (Cth) s 13
Australian Citizenship Act 2007 (Cth) ss 3, 24
Cases
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Re Sami and Minister for Immigration and Citizenship [2012] AATA 459
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628
REASONS FOR INTERLOCUTORY DECISION
Professor R M Creyke, Senior Member
27 June 2013
Mr Tony Sami is seeking to become an Australian citizen. Mr Sami has twice had his application for Australian citizenship refused by a delegate of the Minister for Immigration and Citizenship (Minister). The first occasion was in 2005 and the second in 2006.
Mr Sami (born Tewfik Ali Ibrahim Ali Sourour) did not seek review of those decisions until he lodged an application with the Tribunal on 31 May 2013, together with an application for an extension of time.
The interlocutory hearing on the extension of time application was held in Perth on 25 June 2013.
History
Mr Sami was born in Alexandria in Egypt. He arrived in Australia on a sub-class 676 visitor visa on 4 June 2000 and married an Australian resident, Ms Deirdre Solimon, on 10 July 2000. The couple have two children but were separated in 2002, and divorced on 17 December 2012.
Mr Sami was granted a Bridging Visa A on 15 August 2000, a second Bridging Visa A on 12 September 2000, a Bridging Visa B on 23 November 2000, and a Spouse (S/C) 801 Visa on 29 January 2001.
On 15 November 2001, Mr Sami was convicted in the District Court of WA of 7 charges of fraud. In sentencing Mr Sami the judge said:
On these counts, on counts 1 and 2, I’m imposing – no, correction, I’m imposing a 9-month term on each count and counts 1 and 3 are cumulative and others concurrent. That makes 18 months which I think adequately reflects and properly reflects the seriousness of the offending. But … that is going to be suspended for a period of 18 months and what that means is: if you break the law in any significant way in that period of 18 months then you will be brought back to court here and the term will descend.
When considering whether to impose a custodial sentence the judge said:
… the issue is: does this attract a term of imprisonment? Answer to that: yes, it does. Second question: in all the circumstances can that term be suspended? The answer is: taking into account his obligations, taking into account his prior good record, taking into account and acknowledged the time he has spent in custody, the answer to that is, yes, it can.
Mr Sami had been in custody at that time since July 2001.
In a Police Certificate – Name Check Only, dated 15 January 2003, the record showed:
Sourour, Tewfik born on 8 August 1961 in Egypt. Court: Perth District Court. Date: 15/11/02. [sic] Offence: Fraud (7 charges). Court Result: On each charge 18 Months Imprisonment [sic] Concurrent Sentence suspended for 18 Months.
Despite his offences, on 3 October 2003 a delegate of the Minister exercised discretion to grant Mr Sami Australian permanent residence. Mr Sami had commenced the application process which ultimately resulted in the grant of his permanent visa on 15 August 2000.
Mr Sami maintains that the description of the sentence in the Police Certificate was incorrect since he was only sentenced to 9 months, not 18 months, for each of two offences, to be served cumulatively. He conceded, that effectively his suspended sentence was for a period of 18 months. However, in his view, the grant of permanent residence meant he was eligible for Australian citizenship and that it was the mistaken acceptance that he had received a sentence of an 18 month term which was used to deny him Australian citizenship.
On 20 December 2004, Mr Sami changed his name from Tewfik Ali Ibrahim Ali Sourour, to Tony Sami. On 6 January 2005 Mr Sami lodged an application for Australian citizenship under the Australian Citizenship Act 1948 (Cth) (1948 Act). He listed his address in the application form as 3/62 Smith St, Dianella, WA 6059.
On 14 June 2005, his application was rejected on the grounds that Mr Sami did not meet the residence and character requirements in sections 13(1)(e) and 13(1)(f) of the 1948 Act. The letter states that Mr Sami was entitled to apply to the Tribunal for review of the decision provided the application was made in writing within 28 days of receipt of the letter.
On 24 October 2005, Mr Sami made a second application for Australian citizenship. The form showed his address as 27 Mabena Place, Ocean Reef, WA 6027. On 18 May 2006 by letter to Mr Sami, his application was rejected under section 13(11)(a) of the 1948 Act, a provision prohibiting the Minister from granting citizenship during any period in which proceedings for an offence are pending against the person.
On 31 May 2013, Mr Sami lodged his application for review of the decision of 14 June 2005. However, he agreed at the hearing that he intended to seek review of both the 2005 and the 2006 decisions.
Mr Sami was convicted of a number of offences between 2001 and 2010. These offences were listed in the reasons for decision of Deputy President Hotop in Re Sami and Minister for Immigration and Citizenship [2012] AATA 459 and were confirmed by Mr Sami at this hearing as correct. They are:
o on 15 November 2001 he was sentenced in the District Court of Western Australia to an effective term of 18 months’ imprisonment (comprising various cumulative and concurrent sentences of 9 months’ imprisonment) on seven counts of fraud committed in the period from 21 May 2001 to 5 June 2001, which was wholly suspended for 18 months;
o on 23 November 2004 he was sentenced in the Perth Court of Petty Sessions to a fine of $150 on each of two traffic offences committed in January 2004;
o on 22 January 2008 he was sentenced in the District Court of Western Australia to an effective term of 26 months’ imprisonment (comprising various cumulative and concurrent terms of imprisonment ranging from 10 months to two months) on 11 counts of gaining benefit by fraud, two counts of attempting to gain benefit by fraud, and one count of stealing, committed in the periods from 20 October 2005 to 22 December 2005 and from 26 October 2006 to 14 March 2007;
o on 12 March 2009 he was sentenced in the Perth Magistrates Court to a fine of $250 for the offence of unlawfully using a motor vehicle committed on 17 August 2008;
o on 4 February 2011 he was sentenced to a single term of 20 months’ imprisonment on six counts of engaging in conduct with the intention of dishonestly obtaining a gain from a Commonwealth entity committed in or about 2005;
Deputy President Hotop referred to the sentences imposed in paragraph 5 of his reasons:
o On 17 June 2011 the applicant was, following convictions on his pleas of guilty, sentenced in the District Court of Western Australia to:
o 18 months’ imprisonment on one count of attempting to obtain a benefit by fraud;
o 6 months’ imprisonment on each of 16 counts of obtaining goods or benefits by fraud (each sentence to be served concurrently with the sentence of 18 months’ imprisonment); and
o 6 months’ imprisonment on each of two counts of attempting to obtain a benefit by fraud (each sentence to be served concurrently with the sentence of 18 months’ imprisonment).
There is no mention in this list of the 2008 sentences.
On 24 October 2005, Mr Sami lodged a second application for Australian citizenship. The application was refused on 18 May 2006. The letter from the then Department of Immigration and Multicultural Affairs was addressed to Mr Sami at 27 Mabena Place, Ocean Reef, WA 6027 and advised him that he had a right of review by the Tribunal provided he applied within 28 days of receipt of the letter.
Although the information on his sentences was incomplete in the material available to the Tribunal, Mr Sami appears to have had the following periods of imprisonment:
·22 January 2008 until March 2010 (during periods of which he was released from prison on parole)
·28 December 2008 to 24 March 2009 (for breach of parole);
·30 January 2010 to 16 September 2010;
·4 February 2011 (continuing)
Mr Sami was warned by letter from the Department dated 16 April 2008 that ‘any further criminal convictions or any other conduct on [Mr Sami’s] behalf that comes within the scope of’ section 501 (6) of the Migration Act 1958 (Cth) ‘could result in the consideration of the cancellation of [Mr Sami’s] visa’. Despite that warning Mr Sami again reoffended and his visa was cancelled on 20 March 2012. He was taken into migration custody at the Perth Migration Centre. He is currently in custody at the Villawood Detention Centre, Sydney.
Legislation
The Australian Citizenship Act 2007 (Cth) (2007 Act) commenced on 1 July 2007. Transitional arrangements were contained in the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (Transitionals Act) which also came into force on 1 July 2007. The Transitionals Act applies to this matter because Mr Sami was a permanent resident prior to 1 July 2007 and had applied for citizenship prior to 1 July 2010.
Other legislation relevant to the extension of time application includes the Administrative Appeals Tribunal Act 1975 (Cth). Section 29 deals with extension of time applications:
Manner of applying for review
…
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Consideration
It is accepted by the Tribunal that in accordance with the provisions of the Transitionals Act that the 2007 Act applies to Mr Sami’s application. In any event, the principal provisions relating to Mr Sami’s applications, that is, concerning the permanent resident requirement, the residence requirements, and the good character provisions, are in effect the same in both the 1948 Act and the 2007 Act. These issues are considered under the Merits of the Application in the following discussion.
The issue is whether Mr Sami should be granted an extension of time to apply to the Tribunal for review of the decisions to refuse his applications for citizenship. Mr Sami was notified of those decisions by the Department by letters dated 14 June 2005 and 18 May 2006. Mr Sami lodged his application to the Tribunal on 31 May 2013. Applications to the Tribunal are to be made, in most circumstances, within 28 days of the day on which the relevant decision was provided to the person.[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
The Tribunal’s discretion to extend time as set out in section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is unconfined. In such circumstances, the overall purpose of that discretion is to prevent an injustice which an applicant might suffer if a rigid time limit is adhered to.[2] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment sets out helpful principles for deciding whether to grant an extension of time when there is an unconfined discretion.[3] Those principles, paraphrased, are:
·Whether there is an acceptable explanation of the delay so that it would be fair in the circumstances to extend time;
·Has the person notified the decision-maker that the finality of the decision is contested;
·Is the Department likely to be prejudiced by the delay;
·Has the delay impacted adversely on people including the Department or on established practices;
·Whether there is sufficient merit in the substantive application; and
·Is the grant of an extension likely to prejudice others in similar positions and be contrary to the wider public interest.
[2] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635.
[3] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310-312.
In the submission on the extension of time application the Minister has focused on three of those factors: the delay; the explanation for the delay; and the merits of the application. The Tribunal has accepted that these are the key principles for its consideration.
Unacceptable delay
Mr Sami had applied for Australian citizenship in 2005 and again in 2006. He did not seek review of either of those decisions until 2013. As a consequence, there has been a lengthy delay. Such a delay is unacceptable given the difficulties that this creates in finalising his applications. These include the increased likelihood that memories of events at the time will have faded leading to inaccurate accounts, the possible absence of witnesses and other documents needed to give probative force to evidence, and the administrative burden it places on people including the Department in finding material so many years later. The Tribunal finds that this factor does not support Mr Sami’s application.
Explanation for the delay
Mr Sami explained his reasons for the delay as follows:
·I never been given a copy of the decision or knew that I could appeal it
·I only discovered the error occurred during the process of the application recently.
·I am a detainee in Perth Immigration Detention Centre and in my opinion I been held in captivity illegally while I should be an Australian Citizen.
In relation to the last point Mr Sami had also said in the application for review form:
1I believe that the Departmental error occurred in the process of deciding my application.
2Due to an error in my Criminal Record I have been assessed under section 501.
3I believe that this decision was taken while [sic] Immigration officials knowing that there is an error in my Criminal Record.
4I believe that this decision was made under influence that I was subject to section 501.
5I believe that if this error would not occur I would be an Australian citizen by now.
6I believe that this decision should be reserved and a more favourable decision to be made.
In summary, it is Mr Sami’s belief that the 12 month or more term of imprisonment which is referred to as a ‘substantial criminal record’[4] for the purpose of the ‘character test’[5] in section 501 of the Migration Act 1958 (Cth) has been applied to his case. In his view the incorrect reference to an 18 month sentence for his 2001 convictions, that is, a term in excess of 12 months, underpins the refusal to grant him citizenship.
[4] Migration Act 1958 (Cth) s 501(7).
[5] Migration Act 1958 (Cth) s 501(6).
The ‘good character’ requirements are not defined in either the 1948 Act or the 2007 Act. So although a term of imprisonment may be relevant to that criterion, no particular term is specified for the purposes of deciding whether someone is of good character. The only relevance of a term of imprisonment in excess of 12 months in either Act is that it extends the time to be in Australia in order to meet the general residence requirements.
The more substantive issue relates to Mr Sami’s claim that he did not receive either letter notifying him that his applications for citizenship had been refused and of his right of review by the Tribunal. Mr Sami’s evidence was that in the first instance in relation to the 2005 application, when he had not heard about the outcome, he rang the Department’s 1300 number to enquire about progress and was advised by a person in a call centre that his application had been refused. Accordingly he lodged a second application.
He also claimed, that he had enquired several times at the Department’s office and was advised orally by an officer of the refusal of the 2006 application. He said at one point that an officer to whom he spoke had promised to send a copy of the letter of notification to him but failed to do so. Later he also said when he asked for a copy it was refused.
Mr Sami explained that the reason he may not have received written notification of the first letter of rejection was that at the time of the refusal he was moving residence. Although he said he had a forwarding notice at the Post Office, no letter from the Department was received. At all relevant times in, 2006 when he should have received written notification of the second rejection, he was resident at 37 Mabena Place, Ocean Reef. Again, he claimed that the rejection of his 2006 application was not received.
The Tribunal notes that both notification letters were addressed to Mr Sami’s address on the application form. It is surprising that he did not receive them. Mr Sami did say he could not recall whether he had notified the Department of his change of address and this might explain why the notification in 2005 had not been received. However, his change of address was on the 2006 application form and he was resident at that address at the relevant time for notification.
The Tribunal has difficulty accepting that Mr Sami did not receive one or both rejection notifications. In the course of his application for three visas in 2000, and in connection with his application to be recognised as a permanent resident, Mr Sami would have had regular correspondence with the agency up until October 2003. He did not suggest he had problems with receipt of mail from the Department during this period. He would also have been aware that the Department would normally contact him by mail in relation to his applications. The Tribunal also finds it improbable that an officer of the Department would have refused to provide a copy of a letter if a person claims that the original had not been received.
Even if Mr Sami’s claim that he was moving house at the time of notification of his 2005 application is accepted, the Tribunal is not satisfied that Mr Sami did not receive the 2006 letter of notification. In those circumstances, he would have been aware of the advice in that letter that he had a right of review by the Tribunal of the decisions which had to be exercised within 28 days. The Tribunal does not accept this explanation for his 7 year delay in lodging his applications for review.
Another of Mr Sami’s explanations for the delay is that he is in migration detention. The Tribunal accepts that being in detention does limit a person’s ability to manage affairs outside the detention centre. However, on the information available, Mr Sami was not in detention at least until 2008, and not continuously until 2011. Although at the hearing Mr Sami claimed he was in detention in 2007, the information held by the Tribunal is not consistent with that claim.
Accordingly Mr Sami had two or three years from 2006 or 2005 when he was not in detention, during which he could easily have followed up his application for citizenship, and on being advised that his application was unsuccessful, sought review by the Tribunal. The Tribunal has not accepted that Mr Sami’s explanations for review are sufficient to satisfy it that he should be entitled to an extension of time to seek review by the Tribunal.
Merits of the application
The Minister’s submission notes several barriers to any likely success of Mr Sami’s claims. He has ‘a significant criminal record resulting in the imposition of lengthy prison sentences in 2001, 2008 and 2011’, as set out at [17]. This record would make it difficult for him to meet the good character requirements in the 2007 Act. Subject to its discussion in paragraph 38 of these reasons, the Tribunal accepts that this is an accurate reflection of Mr Sami’s record.
A second hurdle was described in the submission as follows:
In addition, pursuant to s24(4)(c) of the Australian Citizenship Act 2007 the respondent [Minister] is prohibited from approving a person becoming an Australian citizen during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence. Furthermore, s24(6)(d) extends the prohibition for a period of 10 years if the person is a serious repeat offender [among other things has received a sentence of imprisonment for a period of at least 12 months]. The applicant [Mr Sami] is a serious repeat offender because he received serious prison sentences in 2001, 2008 and 2011.
Mr Sami’s argument was that he had received a suspended sentence for his offences in 2001 and in relation to his applications for Australian citizenship in 2005 and 2006, this was the only sentence which should be taken into account.
Dealing first with Mr Sami’s argument about which sentences could be taken into, the Tribunal notes that the nature of merits review is such that, subject to any legislation to the contrary, the decision-maker and on review, the Tribunal, is entitled to take into account any relevant information up to the date of its decision.[6] The terms of the 2007 Act do not prohibit the Tribunal from considering facts subsequent to the decisions under review. That finding is supported by the absence of any definition of ‘good character’ in the 2007 Act. These circumstances indicate that this issue can be considered by the Tribunal on facts which it is aware of since the time of the initial decisions. In those circumstances, the Tribunal is able to consider Mr Sami’s subsequent offences and sentences.
[6] Shi v Migration Agents Registration Authority (2008) 235 CLR 286. See also Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59 (in which facts subsequent to the initial decision by the Minister were taken into account by the Tribunal)
The expressions ‘serious prison sentence’ and ‘serious repeat offender’ are defined in the 2007 Act in section 3 as follows:
‘serious prison sentence’ means a sentence of imprisonment for a period of at least 12 months.
‘serious repeat offender’ : a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.
In the first instance, Mr Sami’s maximum sentence for any of the charges in 2001 did not exceed 12 months. The effect of his sentences, however, was that he received a term of 18 months which is in excess of 12 months. At the same time, the sentences were suspended. In those circumstances and given the ameliorating factors which the judge took into account in granting the suspended sentence, the Tribunal is not persuaded that he was given a ‘serious prison sentence’ in 2001.
In any event, if the Tribunal is wrong in that conclusion, in 2008 and 2011, Mr Sami’s effective sentences of 26 months and 20 months respectively and for which he has spent, or presently does spend, time in detention, would mean he is a ‘serious repeat offender’. That means Mr Sami would not meet the ‘good character’ requirements for the purposes of a citizenship application under the 2007 Act.
Finally, it was submitted that a pre-requisite to a person being granted Australian citizenship is that they are a permanent resident. Mr Sami’s permanent residence visa was cancelled on 20 March 2012.
Taking account of these three significant barriers to Mr Sami’s being granted Australian citizenship; the Tribunal is not satisfied that the merits of his claim warrant granting him an extension of time.
Conclusion
Mr Sami has claimed that he would suffer significant hardship in not being able to see his children if he is not granted Australian citizenship and is also deported, if he is not able to live in Australia, and from the possible danger to himself posed by a return to Egypt.
However, in view of Mr Sami’s significantly delayed application, his inability satisfactorily to explain his delay in seeking review by the Tribunal, and the prospects that his application for Australian citizenship would not be favourably regarded, the Tribunal is not satisfied in all the circumstances that it is reasonable to grant Mr Sami’s application for an extension of time. That means his application to the Tribunal for review of the decisions in 2005 and 2006 is refused.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member. ..............................[SGD MSunits]..........................................
Administrative Assistant - Legal
Dated 27 June 2013
Date of hearing 25 June 2013 Applicant By telephone Solicitors for the Respondent Australian Government Solicitor
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