Tony Sami v Minister for Immigration and Citizenship

TONY SAMI
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2014] HCASL 212
P11/2014

The applicant is an Egyptian citizen. A delegate of the respondent cancelled the applicant's Class BS Subclass 801 Partner visa on the basis that he failed to pass the "character test" under s 501 of the Migration Act 1958 (Cth) ("the Act"). The applicant did not pass the character test because he had a "substantial criminal record" within the meaning of s 501(7) of the Act.
The Administrative Appeals Tribunal ("the Tribunal") affirmed the decision of the delegate and the Federal Court of Australia (McKerracher J) dismissed an application for judicial review of the Tribunal's decision.
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. The Full Court held that the Tribunal understood it was bound to treat, and did treat, the best interests of the applicant's children as a primary consideration, that the Tribunal found those interests were best served by not cancelling the applicant's visa, but that this did not warrant significant or substantial weight. The Court held that the weight to be given to those considerations was a matter for the Tribunal. An application by the applicant to adduce fresh evidence was rejected on the basis that such evidence went to the merits of the Tribunal's decision.
The applicant seeks special leave to appeal from the decision of the Full Court. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).
The applicant requires an enlargement of time within which to lodge an application for special leave to appeal from the decision of the Full Court. An enlargement of time should be granted, but the application for special leave to appeal refused. There is no reason to doubt the correctness of the decision of the Full Court. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave. The application is to be dismissed.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
10 December 2014 S.J. Gageler

CaseChat Overview and Summary

The matter before the court involves Tony Sami, an Egyptian citizen, who is appealing against the decision of the Full Court of the Federal Court of Australia. The respondent is the Minister for Immigration and Citizenship. The dispute revolves around the cancellation of Sami's Class BS Subclass 801 Partner visa by a delegate of the respondent. The delegate found that Sami did not pass the character test under s 501 of the Migration Act 1958 (Cth) due to his substantial criminal record, as defined by s 501(7) of the Act. This decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) and subsequently upheld by the Federal Court of Australia and the Full Court of the Federal Court of Australia. Sami now seeks special leave to appeal to the High Court of Australia.

The legal issues the court was required to address include whether the Tribunal properly considered the best interests of Sami's children as a primary consideration and if the weight given to those interests was appropriate. Additionally, the court had to consider whether the fresh evidence proposed by Sami could warrant a reconsideration of the Tribunal's decision. The Full Court of the Federal Court of Australia had previously determined that the Tribunal had correctly considered the children's best interests and that the weight given to those considerations was within the Tribunal's discretion. The Full Court also found that the fresh evidence did not warrant a significant or substantial weight and rejected Sami's application to adduce such evidence.

The court concluded that there were no grounds to doubt the correctness of the Full Court's decision. The application for special leave to appeal was dismissed because it was deemed to have insufficient prospects of success. The court, however, granted an enlargement of time for Sami to lodge his application for special leave, considering his lack of legal representation. This decision was made under rule 41.10 of the High Court Rules 2004 (Cth). The court ordered that the Registrar draw up, sign, and seal an order dismissing the application for special leave.

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