AFX17 v Minister for Home Affairs

Unreasonable delay 44 A conclusion that the Court has jurisdiction to grant relief in the form of mandamus in the present proceeding leaves open the question as to whether there has been "unreasonable delay" such as to warrant the grant of such relief. Expressed slightly differently, and as expressed in the first prayer for relief in the Amended Originating Application, has there been a failure to make a decision in respect to the application for a protection visa "within a reasonable time"? 45 In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 ("BMF16"), Bromberg J helpfully set forth the following principles when entertaining a submission that there has been "unreasonable delay", namely: [27] The tenor or underlying rationale for the approach taken in the authorities is consistent with the proposition that a delay which has not been justified or satisfactorily explained is to be regarded as unreasonable: … Many of those cases suggest that the onus (or at the least the evidentiary onus) of demonstrating that a delay is justified, may fall upon the decision-maker. That approach is expressly taken by the Canadian cases to which I have just referred where, in considering whether mandamus should issue, a delay will be considered unreasonable if: (i) The delay has been longer than the nature of the process required, prima facie; (ii) the applicant is not responsible for the delay; and (iii) the authority responsible for the delay has not provided satisfactory justification. [28] In these proceedings the Minister accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay. The concession was properly made. As I will explain, the delays in question were caused by very lengthy periods of inactivity. The extent of inactivity in the processing of the applications calls for a meaningful explanation to be provided by the Minister as to why that inactivity occurred and why the delay thereby caused ought not be regarded as unreasonable. [29] The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira (at [19]). In that case, the Privy Council considered that making allowance for "the customary way of doing things in Antigua", in general and absent special considerations, the "outside limit of reasonable time" for the processing of a citizenship application was 12 months (at [42]). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at [45]). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at [56]-[57] (cf Thornton at 493). (citations omitted). 46 More recently, in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27, (2019) 268 FCR 424 at 434 Besanko and Thawley JJ have observed (at 434): [59] … As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning. 47 The Applicant's application for a protection visa was made in December 2016. It was in October 2018 that the Tribunal set aside a delegate's decision to reject the application. Between May and November 2019 there was no response to inquiries made on behalf of the Applicant as to the progress of his application. But in February 2020 a decision was made to set aside the Tribunal decision and to refuse the visa application. That decision of the Minister was set aside by consent in March 2020. 48 In April 2020, there was internal consideration given to the visa application. On 8 April 2020, a delegate "assessed the applicant as meeting the criteria in s 36(1B) and that he met the criteria in s 36(1C) of the Act". On 20 April 2020, a delegate "made an indicative finding that the applicant met all of the criteria for the grant of the SHEV". On 21 May 2020, "a delegate referred the indicative decision for quality checking". 49 In late May 2020, there had also been internal Departmental consideration given to the preparation of a "Client brief" to be sent to the Minister in respect to a decision being made by the Minister under s 501A(1) of the Migration Act. 50 Whether or not the Departmental officers involved in the April and May 2020 assessments were the same as those involved in the materials being collated for the decision to be made as notified in the June 2020 letter is not disclosed in the evidence. Nor is it disclosed whether the materials being prepared in April and May 2020 were different to and (if so) the extent of any differences between that material and the materials previously prepared for the: August 2018 decision of the delegate; the proceedings which culminated in the October 2018 Tribunal decision; and the February 2020 Ministerial decision. Presumably materials were being updated - but beyond that it would certainly seem to be the case that the facts and circumstances surrounding the Applicant have been well canvassed over many years. 51 The evidence relied upon by the Respondent Ministers in the present case also discloses (inter alia): the number of cases under consideration by the Minister in about October 2018; and the Government being in "care-taker" mode in April/May 2019 and the allocation and re-allocation of Ministerial responsibility for the making of decision in August/November 2019. It would seem that there has been active consideration of the decisions to be made affecting the Applicant since February 2020. 52 The "practical onus of establishing by evidence that there was a reasonable explanation for the delay" rests on the Minister: BMF16 [2016] FCA at [28]. 53 It is concluded that the Applicant has discharged the onus of establishing that there has been "a delay which called for explanation": AQM18 [2019] FCAFC at [59], (2019) 268 FCR at 434 per Besanko and Thawley JJ. That conclusion is reached because: the Applicant was assessed or "indicatively found to engage protection obligations" in July 2017; found to satisfy the character test under s 501 in October 2018; again on 8 April 2020 assessed to meet the criteria in s 36(1B) and s 36(1C); and on 20 April 2020 indicatively found to meet all of the criteria for the grant of a protection visa - in other words, there has been repeated Departmental consideration of these matters over a period of time extending from as far back as about four (4) years and, despite such repeated assessments, the Applicant's application still remains unresolved. To a lesser extent there has also been delay: between February and May 2020 - although there has been Departmental consideration being given to the decisions to be made in respect to the Applicant, left unexplained is what further or different consideration was necessary to supplement the materials previously relied upon by either the delegate in August 2018 or prior to the decision made in February 2020. The more detailed the prior consideration given to those matters of relevance, the less (presumably) the need to "re-invent the wheel" thereafter. If there were further matters which warranted new findings to be made or further evidence obtained, it was left unexplained by the Respondents' evidence. 54 And such delay as has occurred in the decision-making process, it is respectfully concluded has been "unreasonable" by reason of: the fact that the decisions to be made affect the very liberty of a person; the failure to apparently even consider the granting of a bridging visa (as was first done in August 2013) or some other form of visa to effect the release of the Applicant from immigration detention pending whatever Departmental assessments had to be undertaken before a final decision could be taken; the passage of time between December 2016 and the present date; together with: the absence of any explained need to supplement, rather than to assess afresh, materials previously collated for like decision-making tasks; and the fact that the Applicant made a series of requests between May and November 2019 for an update on the progress of the application for a protection visa and those requests were met with silence from the Department and the Respondent Ministers. Although such facts may themselves support a finding of "unreasonable" delay, that finding is only reinforced by: the reasons given by the Minister in February 2020 stating that Minister exercised his "discretion under s 501A(2) of the Act to set aside the original decision and refuse to grant [the Applicant's] Safe Haven Enterprise (Class XE) visa" notwithstanding that his Department had found the Applicant to be "a person in respect of whom Australia has non-refoulement obligations"; and the terms of the letter dated 2 June 2020 - that letter again exposing the active consideration being given to whether he should refuse to grant a visa under s 501A(2) of the Migration Act, whilst at the very same time considering whether to set aside a decision of the Tribunal which reviewed a decision refusing to grant a visa. The February 2020 reasons and the 2 June 2020 letter reinforce the continued reliance sought to be placed by the Respondent Ministers upon s 501A(2) in a factual context where consideration is also being given to whether to grant or refuse a protection visa. If BAL19 be correct, and the Minister is bound to apply the law as set forth in that decision, it was not open to the Minister to pursue such a course. It was not open to the Minister when considering the fate of a protection visa application to pursue a course contrary to the law as settled by BAL19. The Minister could not, for example, administer the law contrary to BAL19 in the hope that that decision may be reversed on appeal. 55 Specifically rejected is the submission advanced in writing on behalf of the Respondent Ministers that there would not be unreasonable delay "even if the Minister were to suspend consideration of the visa application while awaiting judgment from the Full Court". It may well be correct to contend, as did the Respondent Ministers, that "the reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it was capricious and irrational": Thornton v Repatriation Commission (1981) 52 FLR 285 at 291 per Fisher J. There in issue was the reasonableness of the Commission deferring consideration of a claim pending a High Court decision. On the facts of the present case, a reasonable man would be most concerned if the Respondent Ministers "suspend[ed] consideration of the visa application" in circumstances where to do so would result in the continued detention of and deprivation of the liberty of the Applicant. 56 It is "unreasonable" for the Minister to take any time at all in making a decision whether to grant or refuse a protection visa by reference to whether a decision can or should be made pursuant to s 501A(2). A reasonable man, it is considered, would consider it to be the job of the Respondent Ministers to apply the law as presently settled by the decision of Rares J in BAL19. 57 The delay, to employ the language of Bromberg J in BMF16 "has not been justified or satisfactorily explained": [2016] FCA 1530 at [27]. 58 It is thus concluded that there has been "delay" in the making of a decision in respect to the protection visa application first made in December 2016 and that such delay is "unreasonable". 59 Given the conclusion that the Court has jurisdiction to make an order in the nature of mandamus and the conclusion that there has been "unreasonable delay" in the making a decision, it follows that the Court can make an order compelling the Minister to make of a decision. 60 Whether or not such an order should be made, nevertheless, involves an exercise of discretion. In the exercise of the Court's discretion, it is presently considered that no such order should now be made, given: the expectation that the Respondents will abide by the declaratory relief to be granted and the absence (presumably) of any necessity to issue an injunction restraining any consideration by the Respondents that is contrary to the law as set forth in BAL19; and the expectation arising from the consideration being given to the Applicant's circumstances in April/May 2020 and the 2 June 2020 letter that a decision can be expected without further delay. If those expectations are not fulfilled, an application can be made in the present proceeding seeking such further orders as may then be necessary.

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