has there been unreasonable delay?
20 As Murphy J observed in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 (at 578), where a statutory obligation to perform a public duty exists, without a time limit "any duty would be illusory". For that reason, where a time limit is not specified, a "reasonable time" will be implied. The same approach was taken by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-574. These authorities have been relied upon in support of the proposition that in the absence of specified time limits decisions required by statute are to be made within a reasonable time: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J); Repatriation Commission v Morris (1997) 79 FCR 455 at 461 (Beaumont J); NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [12] (Beaumont J); and see generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014) at 300 [6.51].
21 That common law principle is reflected in s 7(1) of the ADJR Act, the terms of which are set out above. I am satisfied that s 7(1) is enlivened in these proceedings. First, the Minister has a duty to make a decision under s 24(1) of the Act, that being a decision to which the ADJR Act applies. That is uncontentious. Second (and also not in contention), there is no law that prescribes a period within which the Minister is required to make that decision; and, third, "the [Minister] has failed to make that decision". The third requirement is contentious but, for the reasons I later address, I hold that each of the refusal decisions are tainted by jurisdictional error and that, lacking an legal foundation, each decision is properly regarded, in law, as no decision at all.
22 I turn then to consider the meaning of "unreasonable delay" in s 7(1) of the ADJR Act. I do so by reference to authorities which have considered that provision, but also by reference to other cases, including where the common law principle which s 7(1) embodies has been considered. I think that two matters should be borne in mind as guiding principles. The first is what Dixon J said in Koon Wing Lau at 574 that "[w]hat is a reasonable time will depend upon all the facts …" or, in other words, a delay will be unreasonable where it is unreasonable in all of the circumstances: Thornton v Repatriation Commission (1981) 35 ALR 485 at 489-490 (Fisher J); Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24 at [37] (Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes and Sir Bernard Rix).
23 Second, an important consideration in determining whether "there has been unreasonable delay in making the decision" is the scheme of the legislation within which the relevant decision making power is found. The word "unreasonable", is a broadly-expressed standard and particularly when faced with the interpretation of a broadly-expressed standard, the task of statutory construction must give effect to the evident purpose of the legislation and be consistent with its terms: AB v Western Australia (2011) 244 CLR 390 at [23]-[24] (French CJ, Gummow, Hayne, Kiefel and Bell JJ). As Gummow J said in Al-Kateb v Godwin (2004) 219 CLR 562 at [121] (in a passage adopted by Middleton and Wigney JJ in Sneddon v Minister for Justice (2014) 230 FCR 82 at [116]), in relation to the word "reasonably" in the command that a duty be performed "as soon as reasonably practicable":
The qualification "reasonably" introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.
24 To the same effect, in Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203 at [28], Ryan, Drummond and Hely JJ observed, in relation to a statutory requirement that a grant of an interest in land be made "within a reasonable time" of an interest in land being acquired:
We accept the test imported by the phrase "within a reasonable time" is an objective one to be applied in the light of all the circumstances made relevant by the legislative context.
25 Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.
26 To my mind, the question that s 7(1) poses is really this: by reference to the statutory scheme in which the decision-making power is found, has there, in all of the circumstances, been an unreasonable delay in the making of that decision. The provision obviously calls for an objective assessment to be made: Thornton at 490 (where Fisher J applied a reasonable person test).
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: Thornton at 492; Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 476 (Neaves J); Karda v Minister for Immigration and Ethnic Affairs [1995] FCA 1132 (Sackville J); Oliveira at [43]; Conille v Canada (Minister of Citizenship and Immigration) [1999] 2 FCR 33 (Tremblay-Lamer J); Dragan v Canada (Minister for Citizenship and Immigration) [2003] 4 FCR 189 at [54] (Kelen J); Gondara v Canada (Minister of Citizenship and Immigration) 2006 FC 204 at [12]-[16] (Barnes J). 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).
30 A few observations should be made about the scheme of the Act. The subject matter of the Act is citizenship. Whilst not expressly stated, there can be no doubt that the Act regards citizenship as a public good and that conferral of it to deserving applicants is to be encouraged. Lengthy delays in the process of conferring citizenship would serve to undermine that underlying objective. On the other hand, conferral of citizenship is not usually attended with great urgency. A delay will not ordinarily cause great detriment to the person affected because, for most things, permanent residency rather than citizenships suffices to provide a person with access to most of the benefits of living in Australia. The other observation I would make is that the scheme of the Act does not, it seems to me, envisage the process of assessing an application to involve great complexity and therefore require procedures or processes which are inherently time consuming. For the purposes of assessing an application for citizenship, the scheme does not require or provide for a hearing or any other formal inquiry. No investigative powers are provided to the Minister, nor is any power conferred upon the Minister to compel the production of documents or call witnesses. Section 46 of the Act provides that the application should be accompanied by the information required either by the application form or by the regulations made under the Act. What seems to be envisaged by the scheme, at least for an ordinary case, is a desktop assessment which, it may be expected, could be conducted in a number of hours rather than requiring days or weeks. That is, however, not to say that the scheme does not contemplate that some delay might be caused by reasonable resourcing constraints, the need for the Minister to seek further information from an applicant or obtain information independently. In a case which is not straightforward, it may be expected that the need to collect information will itself consume time. The Department of Immigration and Border Protection's ("Department") own service standard envisages that 80% of citizenship applications will be processed within 80 days of an application being made. Applicants who sit and pass the citizenship test are told that in most cases a decision is made within four weeks.
31 I turn then to the relevant facts, much of which also provide relevant background to the question of the validity of each of the refusal decisions.
32 F is an Afghan man of Hazara ethnicity and Shi'a Muslim religion. He claims that he was born in Afghanistan in or about the mid-1980s and that in or about the mid-1990s he fled with his family to Pakistan to escape persecution at the hands of the Taliban. In 2010 F arrived to Christmas Island by boat. On Christmas Island F underwent a Refugee Status Assessment ("RSA") conducted by an officer of the Department. By an RSA decision record dated 29 November 2010 F was found to be someone to whom Australia owes protection obligations. The RSA decision record identified "[i]dentity concerns" in respect of F including that he had arrived to Australia without identity documents. The RSA officer ultimately found, however, that, "for the purposes of [the RSA]", F was who he had claimed to be. On 1 December 2010 F was granted a Protection (subclass 866) visa and permanent residence in Australia.
33 On 1 December 2014, precisely four years after the grant of his Protection visa, F made an application to the Department for Australian citizenship.
34 For reasons unnecessary to explain, his application was resubmitted on 17 December 2014. On resubmitting his application, F included a note explaining that he did not have a birth certificate and provided a statutory declaration in which he declared that he was born in a small village in Afghanistan and that no one in that village had birth certificates. In response to the requirement on the application form that he provide three documents "which collectively contain your photograph, signature, current address, date of birth, birth name and gender", F provided certified copies of his Australian Titre De Voyage, his Victorian driver's license, his Medicare card and a bank statement. Those documents were annexed to F's statutory declaration. The application form did not require that proof of identity be provided through records issued in the applicant's country of origin and no such records were provided by F when he made his application.
35 On about 27 January 2015, the Department wrote to F advising that an appointment and an Australian citizenship test had been scheduled for 3 March 2015. The letter advised F to bring with him the originals of all of the identity documents that he submitted with his application. The Department wrote again on or about 30 January 2015 changing the date of the appointment and test to 16 February 2015. F attended a citizenship appointment and test in Melbourne on 16 February 2016. He failed the citizenship test after two attempts. At that appointment, F provided his statutory declaration regarding his inability to obtain a birth certificate and also originals of his Titre De Voyage, his driver's licence and his Medicare card. F's file records that those documents, as well as his statutory declaration, were sighted and uploaded to the file. A note on the file states that F's identity was verified.
36 F's citizenship test was re-booked for 27 February 2015. On that day F passed the test. He was then handed a document by an officer of the Department. The document congratulated him on passing the test and advised that in most instances a decision on citizenship applications is made within 4 weeks of the applicant passing the citizenship test.
37 F contacted the Department on 15 April 2015, 2 September 2015, 14 December 2015 and 24 February 2016. On each occasion he queried the progress or status of his application. On each occasion he was informed that his application was being processed or assessed.
38 On or about 30 March 2016, the Department received a letter from F's solicitors. The letter complained of an unreasonable delay in the processing of F's application and requested the Minister to make a decision on that application. The letter foreshadowed that legal proceedings may be commenced. On 5 April 2016, the Department contacted F's solicitors requesting a "Form 956" stating that form to be necessary to authorise contact between the Department and F's legal representative. The Department did not otherwise respond to the contents of the letter from F's solicitors. F's solicitors responded by letter dated 5 April 2016 in terms not presently relevant.
39 On 25 May 2016, F instituted the present application before the Court.
40 On 14 June 2016, the Department wrote to F in relation to his application. The letter stated that its purpose was to give F the opportunity to provide further evidence or information in support of his application. F was told that the Minister's delegate needed to be satisfied that he met the relevant requirements set out in the Act including that F was of good character and that the delegate was satisfied as to his identity. The correspondence "encouraged" F to obtain original documents from his country of origin that would assist in confirming his identity, citizenship or status prior to arriving in Australia. An information list was provided listing various categories of documents, including documents from F's country of origin, that it was suggested F may be able to provide in support of his identity. The letter went on to say that if F was unable to provide such documents he should provide a statutory declaration explaining what attempts he had made to obtain documents and state the reasons why he was unable to present them. Under a heading "Timeframe for response" the letter said this:
In order to enable further consideration of your application for conferral of citizenship we request that you forward any additional documents you wish to provide in response to the above information to the Department within 35 days of the date of this letter.
If you do not provide the outstanding documents, or evidence that you have applied for and are still waiting to receive the documents, a decision on your application will be made on the basis of the information already provided to the Department which may lead to the application being refused.
41 On 5 July 2016, F left Australia to visit his ailing mother in Pakistan. It is the subject of some contention whether or not F received the Department's letter dated 14 June 2016 before he departed from Australia. On the evidence before me I would infer that he did.
42 On 20 July 2016, 36 days from the date of the Department's letter, the Minister's delegate made a decision purporting to refuse the citizenship application of F on the basis that the delegate was not satisfied of F's identity having regard to the material available. I shall extract and discuss the reasons of the delegate for the refusal decision in more detail later when I consider the validity of that decision.
43 G is also an Afghan man of Hazara ethnicity and Shi'a Muslim religion. He claims that he was born in Afghanistan in the late 1970s and that in or about the late 1980s he fled with his family to Iran and lived there for approximately 20 years.
44 G arrived to Australia as an irregular maritime arrival in February 2010. Five days after his arrival to Australia, G completed an interview with an officer of the Department at Christmas Island. At interview G confirmed that he did not have any identity documentation in Australia. On 1 July 2010, G was granted a Protection (subclass 866) visa and permanent residency in Australia.
45 The uncontroversial facts relating to G's application for citizenship are similar to those pertaining to F, other than for the fact that G made his application about six months earlier. That application was made on 1 July 2014, again precisely four years after G was granted his Protection visa. It had been preceded by two applications in 2010 and 2013 to sponsor G's wife and children to come to Australia from Iran.
46 The application for citizenship lodged by G was made on a similar pro forma application form as that of F's application and, in relation to proof of identity, listed the same requirements. In response to those requirements G attached to his application a copy of a Victorian driver's licence, a bill addressed to him from a water authority and a document stated to be a "travel document" extracts of which suggest it to be a Titre De Voyage issued by Australia.
47 On or about 7 July 2014, the Department wrote to G inviting him to attend a citizenship appointment and test on 31 July 2014. Although G attended on that day he was not registered to sit the test as the "Identity Declaration" in his application had not been completed by a person who was an Australian citizen. An appointment and test was rescheduled for 9 September 2014. The Department's letter rescheduling the appointment requested that the originals of the identity documents provided with the application be provided at the appointment. On 9 September 2014, G attended at Melbourne and passed his citizenship test. Like F, he was also provided with a document that advised him that in most instances applicants are advised of a decision within four weeks. He provided Australian issued identity documents at the appointment being his Titre de Voyage, his driver's licence and his Medicare card.
48 A record on G's file notes that on 9 September 2014, his identity was verified. Records dated 12 September 2014 note that an onshore police check was clear; that offshore penal clearance was not required; that there were no offences declared; that there was no further concerns; and that G was assessed as "of good character".
49 G's file also contains a communication written by G's case officer to another Departmental official dated 1 October 2014. The communication refers to a note which had stated that G's "household" (which I take to be a reference to the persons with whom G shared accommodation) were subject to an identity review. The communication noted that G had provided two alternative dates of birth to the Department which was referred to as "an identity concern". It appears that some fingerprint matching was conducted in August and October 2014. Ms Barrio, a witness for the Minister whom I will shortly introduce, accepted that at or about the time of this review, the identity concern raised by the record to which I have referred, was resolved without adverse implications for G's identity.
50 In about December 2014 and February 2015, G telephoned the Department and asked whether a decision on his application had been made. He was told to wait.
51 On 25 April 2015, G's migration agent wrote to the Department stating that it had been over six months since G made his application and that he had not heard anything from the Department. The letter stated that G was waiting for his citizenship as that was the only way he could be reunited with his family who were located in Iran. It was said that "this is his option to finally live with his family after all these years of hardship". The letter asked whether the Department required any further information to be provided. The Department did not respond.
52 On 30 March 2016, G's solicitors (who also act for F) wrote a letter to the Department in similar terms to the letter sent on behalf of F. The letter submitted that the delay in the processing of G's application was unreasonable and sought an immediate decision on the application. The correspondence foreshadowed that legal proceedings may be brought. On 5 April 2016, the Department telephoned G's solicitors advising that it required a "Form 956" and did not otherwise respond. That communication was responded to by a letter dated 5 April 2016.
53 On 25 May 2016, G instituted his proceeding.
54 On 20 June 2016, the Department wrote to G to give him an opportunity to provide further evidence and encouraged G to obtain identity documentation from his country of origin. The letter was relevantly in the same form as that sent to F and outlined at [40] above. After an invitation from the Department, the details of which I will later address, G attended an interview with a delegate of the Minister and other staff of the Department on 12 July 2016. On 15 July 2016, the Minister's delegate made a decision refusing G's citizenship application on the basis that she was not satisfied of G's identity and also not satisfied that G was of good character. I shall deal with the reasons of the delegate and the refusal decision in more detail later.
55 It will be noted that in F's case about 15.5 months elapsed between when F successfully completed his citizenship test and when the Department first communicated with F by its letter of 14 June 2016 seeking the provision of further information. In G's case the period that elapsed between those two events was almost 22 months. It is that inactivity in the processing of the application which is at the core of G and F's complaints of unreasonable delay.
56 For the Minister, two witnesses gave evidence. Frances Finney is the Assistant Secretary of the Permanent Visa and Citizenship Programme Branch of the Department ("Citizenship branch"). She has held that position since March 2015. She has national responsibility for the program management and delivery of the migration and citizenship programmes and national management of the Department's Ethnic Liaison Officer Network. Viviana Barrio is employed by the Department as a Director of Citizenship Services in Victoria and Tasmania. She has held that position since June 2015. That position involves the responsibility of providing strategic and day to day leadership to the Citizenship teams in Melbourne and Hobart.
57 The evidence of Ms Finney and Ms Barrio was relied upon by the Minister as providing an explanation for the delay in the processing of the applications of F and G. The fact of delay was not contested, but the Minister contended that the delay was appropriate having regard to all of the circumstances which bore upon the timing of the refusal decisions ultimately made. The circumstances which the Minister contended explained the delay were outlined in the evidence of Ms Finney and Ms Barrio.
58 For the most part, that evidence was pitched at a level of generality that revealed very little about the actual processing of F and G's applications. Neither Ms Finney nor Ms Barrio had any first hand involvement with those applications before these proceedings were instituted. Case managers directly responsible for the processing of those applications were not called and an explanation as to why was not given. Insofar as the evidence of Ms Finney and Ms Barrio addressed the processing of F and G's applications prior to about mid-June of 2016, it did so entirely by first or second-hand reference to notes or other records contained on the files held by the Department for each of those applications. Extracts from each of the files ("F's file" and "G's file") were put into evidence by F and G. Generally, I found the source documents on those files helpful and I have preferred those contemporaneous records where any conflict between them and other evidence arose.
59 Ms Barrio's affidavit gave the following as the explanation for the delay in relation to G's application:
The Department's letter at VB-8 was not sent earlier than 20 June 2016 due to the applicant's case being identified as one which required thorough analysis of information available to the Department and which required further assessment by specially trained officers. The case was allocated for assessment when resources and staff became available.
60 An explanation in essentially the same terms was also given by Ms Barrio in relation to F's application.
61 The Minister's outline of submissions in relation to F (adopted mutatis mutandis in relation to G) sought to explain the delay on essentially the same basis (but with additional particulars):
35. The evidence before the Court provides an explanation for the delay in making a decision and makes clear why, in all the circumstances, that delay was not unreasonable. That evidence shows that:
35.1. [not pressed];
35.2. a portion of those applications [the totality of applications for citizenship] is identified as requiring "thorough analysis" or "further assessment";
35.3. [Each of F and G's] application was one of those applications identified as requiring "thorough analysis" or "further assessment";
35.4. over the last two years, there were 13,900 applications identified as requiring "thorough analysis" or "further assessment" and:
35.4.1. of those applications, only 3,669 applications have been finalised; and
35.4.2. of the remaining 10,231 unfinalised applications, as at 10 July 2016:
35.4.2.1. 2,545 applications had been on foot for between 12 and 18 months; and
35.4.2.2. 478 applications had been on foot for more than 18 months;
35.5. of the 193 officers in the Department working on citizenship applications, only 12 of them were "specially trained" to provide "further assessment"; and
35.6. since June 2014, there have been considerable changes to the way in which the Department has administered the citizenship programme and:
35.6.1. those changes were introduced due to increased concerns about, among other things, verification of identity in the processing of citizenship applications;
35.6.2. the changes related to both policy and process of the Department; and
35.6.3. the development and implementation of those changes have caused additional delays to the processing of citizenship applications, particularly where identity is in issue.
62 There is a record in each of F and G's files which helps to explain the inactivity on those files. On G's file, a note made by the case officer on 11 March 2015 records that G arrived in Australia as an "IMA" (illegal maritime arrival); that an "identity toolkit" was completed; and that the "application has been put forward for further integrity checks". That note is then immediately followed by a record made on 8 April 2015 as follows:
UNDOCUMENTED ARRIVAL
Filed Undocumented arrival drawer
63 On F's file a note in the precise terms just quoted was made on 31 March 2015. Unlike G's file, no earlier reference to a need for integrity checks appears.
64 Ms Barrio was not employed in the Citizenship branch at the time those entries were made and only joined some three months or so later. In cross-examination, she relied on those entries as confirmatory of her understanding of what had occurred in the Victorian section of the Citizenship branch which she described as follows:
Again. I wasn't there at that time, but my understanding is that in March - February/March of 2015 we looked at cases of people who had arrived without a visa or had no documents on arrival. We looked at the cases and filtered the ones where we needed to do much more work. The effort involved in assessing one of those cases was much higher than the effort in cases where there are documents.
And later in her evidence, again having been prompted by the file entry which I have quoted at [62] above, Ms Barrio said this:
… [a]nd as I said before in relation to this process, when I started in the section, I was advised that around March or April there had been a review of all of the cases that we had and we had left aside the ones where there were no documents - where people had arrived undocumented where people had arrived as - you know, on boats as irregular or illegal maritime arrivals, and where there was no connection between the documents presented in the application and their identity at the time of birth.
65 There is no evidence before me that demonstrates that any attempt was made by staff of the Citizenship branch to verify whether F and G were in fact "undocumented arrivals". Nevertheless, I accept that they were so characterised and, that in a process undertaken in the Victorian section of the Citizenship branch in March to April of 2015, together with other outstanding applications for citizenship where the applicant was also so characterised, the applications of F and G were selected for closer scrutiny because the nature of their arrival in Australia was regarded as raising concerns about their claimed identity. For that reason, as the note on each of F and G's file suggests, the applications were "filed" in the "Undocumented arrivals drawer" on 31 March 2015 in relation to F, and on 8 April 2015 in relation to G. Whether that meant that the files of F and G were physically relocated or whether the "Undocumented arrivals drawer" was merely a symbolic form of categorisation was not the subject of any evidence.
66 Ms Barrio's evidence was not entirely satisfactory including because she became an advocate who sought to defend her unit's record. The general tenor of her understanding was that in March to April of 2015 cases such as F and G were categorised (to use her words, which I will hereafter adopt) as "complex cases" and taken out of the ordinary processing path for citizenship applications. In Ms Barrio's words they were "left aside". What was the ordinary path for citizenship applications was not explained, but it might be expected that applications would ordinarily be processed in order of application or, in other words, in date order. Ms Finney deposed that applications "should be processed in date order normally" but cautioned that State offices of the Citizenship branch had their own arrangement which had not been necessarily consistent before a restructuring that took place in the course of 2015, to which I will later refer.
67 Ms Barrio did not explain whether there was an ordinary cases queue and how it was managed. The import of her evidence was that it could be expected that a "complex case" would take much longer to be finalised than an ordinary case.
68 With one possible exception concerning the possibility of electronic searches of no real significance, Ms Barrio accepted that between 31 March 2015, when F's application was categorised as "complex", and 14 June 2016, when the letter was sent requesting further identity information of F; and from 8 April 2015 to 20 June 2016 (relating to the same events for G), no assessment of any kind was conducted in relation to F and G's applications. In particular, no request for further information was made of F or G and no attempt was made to obtain and analyse information already in the Department's possession in relation to F or G - for instance, in files dealing with their applications for protection visas or in G's applications for a visa for his wife and children.
69 I find that the Department took no steps to progress F's or G's applications for some 14.5 months from the time at which each of those applications was categorised as a "complex case". I also hold that for a period of about 4 months in the case of G, in the time between when finger print checks were concluded and when his application was categorised as "complex", nothing was done by the Department to assess that application.
70 The letter seeking further information sent on 14 June 2006 to F, and on 20 June 2016 to G, were general in nature, not drafted to address any identified specific deficiency in the information held by the Department and, as Ms Barrio accepted, would not have taken long to prepare. She also accepted, and I find, that it was only after those letters were sent and in late June 2016, that officers of the Citizenship branch made any effort to retrieve Departmental files not held by the Citizenship branch relating to F and G.
71 Although not based on any knowledge (direct or otherwise) specific to F or G's applications, Ms Barrio sought to explain why it was that no prior step (and in particular the sending of a request for further information) had been taken to progress those applications. She did that by reference to the method (what she called the "workflow") by which officers in her team worked. She said that work commenced on applications "when the cases were allocated". Decisions were made as to when a case is ready to be allocated to an officer and if allocated "we start working on the case more thoroughly, and then we go - you know, we start the case and we finish it".
72 With direct knowledge, Ms Barrio explained how it was that F and G's cases were allocated. She said:
The cases were allocated after we were advised that the cases were before the Federal Court. The - I remember there was an email saying the cases are going to Federal Court, trying to force the department to make a decision, so I guess that as the director of the area, I saw that and I thought, well, obviously this case is a priority.
Yes. And - - -? ---There are - I mean, we've got a plan on how to manage a significant cohort of applications, but sometimes we take some, you know, which are not in the order of priority because they become priority because of other reasons.
Yes. Well - - -?---It's not very often that we've got Federal Court cases.
73 Whilst nowhere mentioned in her evidence in chief, that evidence given in cross-examination, identified the existence of "a plan on how to manage" what Ms Barrio must be taken to have meant the cohort of "complex cases". And the plan, as identified by that evidence, had an "order of priority".
74 In sum, I take the import of Ms Barrio's evidence to be that there was in existence (at all relevant times) in the Citizenship branch section in Victoria, a plan for managing the processing of "complex" applications for citizenship which included an order for priority or, in simple terms, an ordered queue for the assessment and finalisation of those applications. When an application reaches the top of the queue, assessment work then commences on that application.
75 Apart from applicants who complain to the Federal Court being given immediate priority, all that the evidence of Ms Barrio said about the basis or rationale for the priority order in which applications were queued was this:
Why would these not have been prioritised as applications that were, in one case, two years old and in the other case, 18 month old?---Because we had cases which were identified as being more of a priority than those cases so they were priority but after
- - -
Were they even older ones?---I'm not completely sure about the age. There may have been other reasons why others were - - -
So there might be some that are - that leapfrogged the queue, in a way, that they're not processed in order of date of application?---That's right.
76 There is statistical data before me, given in answer to interrogatories served upon the Minister, which suggest that the "leap frogging" referred to in Ms Barrio's evidence has been very extensive so far as the applications of F and G are concerned. The data is current to 10 July 2016. At that time, G's application was a week or so more than 24 months old and F's application about 19 months old. The statistical information is not confined to Victoria but deals only with applications that, in her affidavit evidence, Ms Barrio referred to as applications identified as requiring "thorough analysis" or "further assessment", but which she otherwise referred to as the "complex cases".
77 The following two tables set out that evidence:
TABLE A
TABLE B
78 Table A demonstrates that between 3,374 and 3,669 "complex cases" were both reached and finalised in a shorter period of time than it took the Department to reach the applications of F and G, and that was so where F and G's applications were only reached because of extraordinary circumstances (the institution of these proceedings). Furthermore, taken together, Tables A and B demonstrate that F and G's applications were in the oldest 3 per cent of "complex cases" lodged in the period surveyed.
79 That evidence suggests that something beyond resourcing or the restructuring of the citizenship program (the detail of which I will shortly explain) has caused very significant delay to the processing of F and G's applications. The vast majority of complex cases in question (about 96 per cent) either did not suffer delay or, at the time of the survey, had yet to experience delay of the magnitude that F and G had experienced by that time. At the least, that evidence provides a foundation for thinking that in terms of being reached for processing, F and G's applications were passed over by many thousands of other "complex" applications.
80 There was no suggestion, either by the evidence or in the submissions made, that the Australia-wide information given in the Tables is not reflective of the position in Victoria. The Minister accepted that F and G's applications were in the oldest 5% of undetermined "complex case" applications.
81 The evidence suggests that a substantial delay in the processing of F and G's applications may have occurred because of the order in which their applications were queued for processing. That their applications were ordered by reference to an unreasonable rationale, and that as a consequence there has been an unreasonable delay in the determination of them, is a real possibility that the evidence does not permit me to exclude. The fact that an applicant who institutes court proceedings is given priority suggests an arbitrariness which does not engender confidence that a reasonable allocation mechanism was being applied by the Citizenship branch in Victoria. Nor does the following evidence, given by Ms Finney about the queue for "complex" or what she called "assurance cases", engender any confidence that a reasonable approach was taken to the order in which such cases were processed:
… So the queue is one that is managed within our state offices. So as - it's undertaken manually. So as case officers would see cases that they couldn't readily resolve and needed further information, they would be placed into this assurance batch. Now, where the particular applicant was in the batch, I don't - it's date order; like, you can report on it by date, but there's no number in the queue kind of thing.
Are they processed in date order?---Well, this is the interesting part of it because they should be processed in date order normally, and because we have had such a large volume of applicants coming through, and because our state officers were operating, if you like, in a more federated sense in the management of their caseloads, what we have been trying to do is make sure that our state officers are operating more consistently, and as I've said in my affidavit, reminding them and asking them to make sure that cases that were lodged earlier should be certainly progressed earlier.
Now, the assessment queue that you refer to by reference to the assurance batching, that, as you gave evidence before, is a new framework that was implemented in November 2015, is that correct?---The - no, the state officers have always had their own complex case arrangements, and what we have been trying to do is to make them more uniform and consistent so that we can track them; so we can actually build reports around them. That's what what's new.
82 The concern expressed in that evidence, that "complex cases" were not being processed in date order as Ms Finney thought they should have been, is also reflected in other evidence given by Ms Finney that in March 2016 it came to her attention that there were older cases (cases of 12 months or older) "that really should be being processed". As a result, Ms Finney directed that priority be given to older cases.
83 The evidence is that each of F and G's applications were allocated to a case officer and that a plan existed in the Victorian office of the Citizenship branch for prioritising the processing of "complex cases". I would presume that given the existence of the plan for processing "complex cases" it would have been possible for the Minister to have called evidence (most helpfully from the case officer) which explained the plan and the progress of F and G's applications under that plan. The evidence does not tell me the allocative rationale actually utilised by the Citizenship branch in Victoria for "complex cases". I do not know where in the queue of "complex cases" F and G's applications were located, nor when those applications would have been reached if these proceedings had not been brought. I do not know the basis upon which some applications were prioritised over others and in particular why F and G's applications were left unreached whilst a vast number of other more recent applications were able to be both reached and finalised. On the evidence before me, I am not able to exclude the real possibility that for a very substantial period of time, F and G's applications were simply left aside and forgotten. In essence, the evidence called by the Minister has failed to explain why it was that F and G's applications sat in the "complex cases" queue without being reached for 14.5 months. Nor has any explanation been provided as to why nothing was done for over 4 months to progress G's application before his application was placed into the "complex cases" queue.
84 There are two general circumstances relied upon by the Minister to explain the delay. I will address first the changes to the administration of the Citizenship Program which, in most part, Ms Finney's evidence detailed. I will then turn to resourcing.
85 Ms Finney deposed that concerns were raised during 2014-2015 about the reliability of identity information being assessed to process citizenship applications for certain applicants. As her evidence developed, it became clear that the concern was focused upon refugees who had arrived in Australia without a visa. An internal audit report prepared by the Department in June 2014 stated that it was important to have a detailed understanding of identity issues and risk and found that identity issues may not fully present themselves until a citizenship application is lodged, at which point they must be addressed. In January 2015 the Martin Place Siege Joint Commonwealth-NSW Review recommended that the Department needed to better assess the possible risk posed by individuals at the pre-visa, post-visa and pre-citizenship stages.
86 From about March 2015, the Department took a range of steps to improve assessment of identity including assessment of citizenship applications. In that month, the Department strengthened the integrity of visa and citizenship programs by improving capabilities in areas such as risk assessment. All citizenship managers received a verbal identity and national security briefing by Departmental identity specialists and an external agency. Managers were informed that a greater level of scrutiny would need to be applied to citizenship processing based on a "risk-based approach". The briefing reinforced the importance of determining an applicant's identity and known aliases for the purpose of assessing citizenship applications. In order to strengthen identity verification processes, the Department developed a "risk-based quality assurance program" in June 2015. Specially trained Caseload Assurance Officers were introduced into each processing office of the Citizenship branch in mid-June 2015. That occurred as part of a nationally consistent approach to enhancing the integrity of the citizenship program. In addition, a number of staff were diverted from regular processing and trained to support the Caseload Assurance Officers. To further develop identity assessment capability within the citizenship program, a two-day identity essentials course was presented across Australia for all Citizenship officers.
87 The Department recruited a specialist project manager to work with each processing office and relevant areas of the Department to design a new business process for enhancing citizenship decision-making. A risk-based quality assurance check on a sample of citizenship applications which had been approved, but had not yet led to citizenship being conferred, was conducted in September 2015. The Caseload Assurance Officers had oversight over this work and helped to refine the decision-making process for assessing risk. Following the check of sample cases in November 2015, a new "high risk assurance business process" ("assurance process") was implemented in the Citizenship branch.
88 When the assurance process was introduced, Ms Finney emailed Ms Barrio and other Departmental officers. Her email stated that the assurance process "applied to all new identified applications for Australian Citizenship". Nothing was said in relation to extant applications. In cross examination, Ms Finney confirmed that the assurance process was directed to new cases. The process required identity assessments to be performed "upfront". That is, at the outset and prior to the applicant attending an initial interview and taking the citizenship test. Ms Finney confirmed that F and G's cases were not in that category, they had long since passed their citizenship tests and the identity requirements at that stage.
89 However, as part of a somewhat curious answer to a question about to whom the new assurance process applied, Ms Finney's response suggested that the new process of identifying and resolving identity concerns was not necessarily new when introduced in early November 2015. She again referred to each State office having had responsibility "for managing their own caseload and identifying those risks within that caseload and then assigning the resourcing and so forth" and said that what the assurance process did, was move the Citizenship branch to "this more nationally-consistent, uniform approach". For that purpose, a date was picked for the assurance process to commence so that new applications would thereafter go through the new uniform process. That evidence must be read with the evidence set out at [81] which also suggested that what was new about the assurance process was a uniform and consistent national approach. The extent to which some State offices within the Citizenship branch (and in particular Victoria) were already using the process or something similar to the procedures required by the assurance process, and from when, was not stated by Ms Finney or by any other evidence. It was after giving all of that context that Ms Finney said:
Now, to answer your question about applications lodged prior to that date, the intention was that they would still (a) be processed and (b) that they would have that same level of checking to be undertaken if - if and as required.
90 There are two ways in which the Minister sought to deploy the evidence about the introduction of new assessment processes for "complex cases". First, and as put by Ms Finney, "[t]he labour-intensive nature and slowness of the assessment process has been a cause of lengthening processing times".
91 There are two difficulties with the Minister's reliance upon the new procedures lengthening the processing time of citizenship applications. The new procedures (even if applicable to extant applications) had not been applied to either F or G because, as at mid-June 2016, their applications had not been reached for further assessment. Second, if the effect of the new lengthier processes on other applications brought about the delay in F and G's applications being reached (a proposition not directly supported by the evidence), the unanswered question remains: Why were other applications prioritised ahead of F and G's and to what extent did that bring about an unreasonable delay?
92 The second way in which this general circumstance was sought to be relied upon by the Minister, was that delay was caused to the processing of F and G's applications because it was necessary for the Department to develop new processes before resuming the processing of extant "complex cases". To counter that proposition, F and G contended that the suspension of processing was itself unreasonable. The contested positions raise difficult considerations in the context of evidence called by the Minister which was often ambiguous.
93 Ms Finney deposed that as a consequence of the developments which I have discussed, applications for citizenship which required further assessment such as F and G's "were placed into an assessment queue" pending the implementation of the changed arrangements. She then deposed that F and G's applications "recommenced assessment" in March 2016. In cross-examination, Ms Finney arguably acceded to the suggestion that F and G's applications were left on hold until shortly before June 2016 awaiting the Department's development of its new processes. Ms Finney's evidence suggested that F and G's applications had been put on hold for 12 and possibly 15 months pending the development and implementation of changes to assessment processes for "complex cases".
94 Relying upon that evidence, F and G contended that their applications had been put on hold for 12 months or alternatively to November 2015 awaiting the development and implementation of the new processing arrangements. They argued that that in itself was unreasonable and had brought about an unreasonable delay. They contended that for the Department to have taken such a long time to formulate and implement those changes and, at the same time done nothing at all to process their applications, was demonstrative of unreasonable delay.
95 However, much of Ms Finney's evidence that sought to address what had actually occurred in relation to F and G's applications was unreliable. The evidence earlier referred to, that the assessment of F and G's applications "recommenced" in about March 2016, is a good example. Ms Finney had no basis (not even a hearsay basis) for that evidence as cross-examination of her revealed. As she was ultimately forced to concede, she was not in the Victorian office of the Citizenship branch and could not "go to that level of detail".
96 On the evidence before me I do not accept that F and G's applications were put on hold pending new processing arrangements for 12 months or possibly longer. I do not accept that Ms Finney knew the extent to which the processing of "complex cases" had been suspended in the Victorian office of the Citizenship branch as a result of the development by the Department of new procedures.
97 As Ms Finney said at various times in her cross-examination, until November 2015 the State offices within the Citizenship branch were managing their process for dealing with "complex cases" according to their own systems. As I have said, the tenor of her evidence was that part of the rationale for the introduction of the assurance process was to make the inconsistent "complex case" arrangements in various State offices more uniform so that they could be tracked, so that reports could be produced, so that the arrangements were transparent and so that "we [the national office] can see what is actually happening".
98 The person who was in a position to know whether the development of new processes had resulted in a suspension of the processing of "complex cases" in Victoria was Ms Barrio. Her evidence in chief referred to the development of new processes and said no more that this:
The consequences of these changes have been a general delay in processing complex citizenship applications, for example where there is limited or no identity documentation.
99 Ms Barrio did not identify any specific period in which the processing of "complex cases" was suspended in Victoria awaiting the development of new procedures or if there was any suspension at all. The tenor of her evidence is reflected in the explanation she gave for the delay which is set out at [59] above and which was to the effect that it was the unavailability of staff and resources which precluded F and G's applications from being allocated for assessment.
100 In cross-examination and in answer to criticism that no work was done on F and G's applications from the time they were categorised as complex until June 2016, Ms Barrio did say that work had been done in relation to developing procedures. She regarded that work as work that was done on the applications of F and G. Nevertheless, she did not identify the extent to which the developmental work undertaken had hindered the processing of "complex cases" in general or F and G's applications in particular.
101 In the end, whilst I do accept that the development of new processes was likely to have delayed the processing of F and G's applications, I do not have a sufficient evidentiary basis upon which to reliably assess the extent of any delay that may have been caused. I note that in the submissions made by the Minister, no contention was made that the assessment of "complex cases" had been suspended in Victoria for any specified period. If any suspension occurred, it seems to me likely that it would have been lifted by mid-June of 2015. As Ms Finney deposed, specially trained Caseload Assurance Officers were introduced into each processing office in mid-June 2015. Their function was "to make decision[s], support other decision-makers and work with specialist areas to progress more complex applications". As the evidence stands, it is difficult to accept that Caseload Assurance Officers were introduced "to progress" the processing of "complex cases" at a time when progress on "complex cases" had been halted and was to remain suspended for many months thereafter. That all suggests that if there was a suspension of the processing of "complex cases", it may have lasted about 3 months. The evidence which I consider to be reliable does not permit a broader finding than that. A delay of about 3 months to develop and implement new procedures of the kind that the Department did implement seems justifiable.
102 However, that F and G's applications may have been reasonably delayed for some 3 months, does not serve to explain the totality of the inactivity in question which, as earlier stated, exceeded 14.5 months from the time that each of F and G's applications were categorised as "complex cases" to the time their applications were reached for further processing.
103 As to whether a scarcity of resources brought about a delay in the processing of F and G's applications, the Minister was in a position to provide detailed evidence about resourcing pressures for the processing of "complex cases" and in particular the processing of F and G's applications in Victoria. Ms Barrio gave no specific evidence about work pressures upon the staff of the Citizenship branch in Victoria. There was evidence before me of the overall numbers of applications for citizenship but that evidence was expressly not relied upon as a basis for explaining any delay to the processing of F and G's applications. The overall number of "complex cases", as set out in Table A and B, was in evidence and was relied upon in a comparison with the overall staffing of the citizenship branch across Australia.
104 Whilst the evidence gives me no reason for thinking that the staff of the Citizenship branch were not busily working processing citizenship applications, the evidence is far too general and non-specific to the circumstances attending the applications of F and G, for me to make any sensible evaluation as to whether a scarcity of resources contributed to the delay in the processing of those applications and, if it did, the extent to which any lack of resources explains that delay: cf Oliveira at [43]. There is also the additional question of whether, if a lengthy delay was caused by a lack of adequate resources, that delay should be regarded as reasonable. As the Privy Council observed in Oliveira (at [44]), "absence of resources is not in general an excuse for maladministration": and see further Wei at 477 and Dragan at [58]. To my mind, in the context of the scheme of the Act, inactivity in the processing of a citizenship application of more than a few months duration is unlikely to be reasonably explained by reference to a lack of resources.
105 The difficulty with the explanation for the delays given by the Minister, is that the evidence fails to demonstrate that resourcing issues or the change in the administration of the citizenship program made to enhance identity assessment, were significant causes of and thereby substantially explain the Department's failure to take any significant step to process F and G's applications for some 14.5 months. Presuming that those two generally applicable circumstances contributed to the delays (and that neither contribution of itself sustains a finding that the delays were unreasonable), the evidence does not permit me to reliably assess the extent to which either was a cause or to exclude other circumstances as bearing significant (if not primary) responsibility for the delays. It is for those reasons, in the context of the onus of the Minister to put evidence before me that sustained a reasonable explanation for the delays, that I have concluded that there has been an unreasonable delay in the processing of each of F's and G's applications for citizenship.
106 Whilst unnecessary for reaching that conclusion, the conclusion is reinforced by my impression about the time it should reasonably have taken to process each of F's and G's applications. In G's case, it is very difficult to understand why his application was not processed in the seven month period between when he completed his citizenship test and when his application was categorised as "complex". A shorter period should have been sufficient. If G is correct that his chance of reunification with his family is dependent upon obtaining citizenship, it is reasonable to expect that his application should have been prioritised and dealt with more quickly. There is no reason apparent to me as to why G's application had not been dealt with at a time well prior to the Department determining that it should enhance its identity assessment processes.
107 Given the later time at which F passed his citizenship test, it is more understandable why his application might have been delayed by the introduction of the new enhanced identity assessment process. But even so, on the evidence and given my impression as to the outer limit of time reasonably necessary, I find it hard to understand why F's application was not dealt with within six months or so of F completing the citizenship test.