Consideration
69 Authorities show that it is for the applicant to establish that there has been unreasonable delay in, in this case, either performing the duty to consider under s 47 or performing the duty to make a decision under s 65 of the Act. The test for determining whether there has been a failure to perform either duty depends on:
… whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not a consequence of neglect, oversight or perversity.
See Thornton v Repatriation Commission (1981) 52 FLR 285 at 292, ASP15 v Commonwealth of Australia (2016) 248 FCR 372 at [21]-[23].
70 The failure of the Minister to provide an explanation for delay may permit an inference to be drawn that there is no proper reason for the delay. But whether such an inference is open, and whether it should be drawn, depends on the length of the delay and the circumstances in which it occurs.
71 In AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 ("AQM18") the appellant's application for a protection visa by a Delegate of the Minister was refused under s 501(1) of the Act. The Delegate's decision was set aside by the Tribunal which held that the discretion in s 501(1) to refuse the appellant's visa on character grounds should not be exercised. Section 501A(2) of the Act conferred the power on the Minister to set aside the Tribunal's decision if certain conditions relating to both character and the national interest were satisfied. The Minister gave notice to the appellant that he was considering setting aside the Tribunal's decision and refusing to grant the appellant a protection visa under s 501A(2). Approximately 10 months later the Minister exercised that power, setting aside the Tribunal's decision and refusing the appellant's application for a protection visa.
72 One of the arguments raised by the appellant in AQM18 was that the Minister's decision was made without jurisdiction because the exercise of the power occurred outside of a reasonable time. This argument was rejected by the primary judge who found that the time taken by the Minister to make a decision was lengthy but not unreasonable. His Honour's decision on this issue was upheld by the Full Court. In relation to the issue of onus of proof, the plurality (Besanko and Thawley JJ) said at [59]:
[59] … 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.
(See also KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 ("KDSP") at [174]-[176] per O'Callaghan and Steward JJ and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 per Gordon and Steward JJ who observed at [109] that: "where there is unreasonable delay in the making of an administrative decision, it is for the respondent to establish a satisfactory justification for the delay".)
73 It was not necessary for the Full Court in either AQM18 or KDSP to decide whether the power under s 501A(2) must be exercised within a reasonable time. However, in AQM18 the Full Court went on to consider whether there had been unreasonable delay by the Minister. In relation to the length of the delay the plurality said at [66]:
[66] The power is one vested personally in the Minister and can be exercised in limited circumstances. In particular, if the Minister "reasonably suspects" a person does not pass the character test and the person "does not satisfy" the Minister that he or she does, then the Minister may refuse (or cancel) the visa only if he is satisfied that it is in the national interest. The power requires natural justice to be afforded and this requires time sufficient to afford it (on the facts here, until 13 April 2017). The power is one directly connected to considerations of national interest. This might involve complex questions not susceptible of speedy resolution or considerations which affect a series of particular cases. Decisions under s 501A(2) affect individuals, but the power to make such decisions - involving as it does broad questions of national interest - is quite different to the power to make decisions concerned with purely private or commercial matters. It is a power which should be exercised after careful consideration given its potential impact on both national interest and the relevant individual.
74 Section 501A(2) is not of direct relevance in the present case because no decision has been made to grant or refuse the visa application. Nevertheless, some of the considerations referred to by the plurality in AQM18 are relevant to the issue of delay in this case.
75 I accept the evidence of Mr Pettinger and Ms Turner that they have genuine doubts as to whether or not the applicant is a Pakistani citizen. It was not submitted by counsel for the applicant that those doubts were not genuinely held. The applicant's contention instead is that, viewed objectively, this is a simple case of the Minister having taken too long to make a decision to either grant or refuse the visa application.
76 It is important to bear in mind that the doubts held by Mr Pettinger and Ms Turner as to the applicant's nationality have not yet been, and may never be, resolved. However, the effect of Ms Turner's evidence is that no finding in relation to the applicant's nationality should be made until the decision-maker responsible for deciding whether protection obligations are owed in respect of the applicant has had an opportunity to review the QSA Statement of Grounds and consider any information that document contains relevant to that question.
77 It was not suggested by the applicant that Ms Turner's desire that relevant officers be granted access to the Statement of Grounds should be disregarded on the basis that the contents of that document could have no bearing on the matter of the applicant's nationality. I would have rejected any submission to that effect on the basis that it is inconsistent with the QSA which states that the Statement of Grounds includes further information that "… may impact on broader visa considerations". That statement falls short of indicating that the Statement of Grounds does contain such information. However in my opinion, there is no basis for rejecting the possibility that the document contains information relevant to an assessment of the applicant's nationality or that the relevant decision-maker responsible for assessing the applicant's protection claims is not entitled to have regard to that document for the purpose of making such an assessment.
78 The applicant relies upon previous decisions of the Delegate and the Tribunal in relation to the applicant's first protection visa application which accepted that the applicant was an Afghan national. The suggestion seems to be that because the Tribunal which considered the applicant's first protection visa application (and presumably the Delegate whose decision was the subject of review) was satisfied that the applicant is who he claims to be, the Minister should not be allowed further time to investigate that matter or, at least, that the previous decision renders a thorough investigation of the applicant's nationality otiose.
79 It does not follow from previous decisions that the Minister is not entitled to revisit the applicant's nationality either on the basis of information previously available or new information that has since become available including any relevant information appearing in the QSA Statement of Grounds. Nor does the fact that the Minister has not at any point between 15 May 2020 and 2 September 2021 sought further information from the applicant about his nationality preclude the Minister or his officers from investigating that matter as they see fit including by conducting a further interview with the applicant after they have reviewed the Statement of Grounds provided such actions are taken within a reasonable time.
80 As mentioned, on 10 September 2020 the applicant was requested to attend a protection interview. That invitation was issued approximately four months after the applicant lodged his protection visa application. There is no evidence to suggest that the delay between the lodgement of the protection visa application and the date of the protection interview was out of the ordinary. Nor is there any evidence to suggest that the time taken to arrange the interview with ASIO, which took place on 26 November 2020, was out of the ordinary or the subject of unreasonable delay.
81 Although the evidence shows that the interview with ASIO was completed on 26 November 2020, there is no evidence to indicate what further steps ASIO was required to take between then and the date on which it issued the QSA. I note that the statement of grounds set out in amended originating applicant does not raise any issue in relation to the time taken by ASIO to issue the QSA.
82 The question addressed in the QSA was whether the applicant was, directly or indirectly, a risk to security and whether it would be consistent with the requirements of security for him to hold a protection visa. In essence, ASIO was required to look into issues concerning national security and, it may be inferred, whether a previous adverse security assessment made in relation to the applicant should be withdrawn. This is a matter that may not be capable of simple or rapid resolution. It may require complex and detailed investigation of events that may have occurred in other parts of the world and in circumstances involving clandestine conduct. In those circumstances, I do not find that the time taken by ASIO to issue the QSA was unjustified or unreasonable.
83 I accept as correct Ms Turner's understanding of the effect of s 36(1B) of the Act which, in the applicant's case, would necessarily have resulted in a refusal of his protection visa application at any time prior to the furnishing of the QSA to the Department on 27 May 2021. In the circumstances I do not accept the applicant's contention that there had been an unreasonable delay in considering his protection visa application or making the relevant decision as at the date this proceeding was commenced.
84 A question arose during the course of final submissions as to whether it is open to the applicant to succeed based on delay occurring after the date the proceeding was commenced in circumstances where it is found that delay occurring up to that date was not unreasonable.
85 There is a statement in Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) by Professors Aronson, Groves and Weeks which suggests that there must have been a failure to perform the relevant duty prior to the commencement of proceedings if a claim for mandamus is to succeed. The learned authors cite P&C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 and R v Building Controller; Ex parte Marinov (1981) 36 ACTR 13 as authority for that proposition. However, neither of those cases involved what was alleged to be unreasonable delay on the part of the relevant decision-maker and the question whether it was necessary for the applicant to establish the existence of unreasonable delay as at the date of the commencement of a proceeding for mandamus was not directly addressed.
86 There have been a number of cases in which delay occurring both prior to and after the commencement of the proceeding in which mandamus was sought was taken into account: see, for example, ASP15 at [48]; AFX17 v Minister for Home Affairs [2020] FCA 807, and BFM16 v Minister for Immigration and Border Protection [2016] FCA 1530. In each of those cases there was found to have been significant delay prior to the commencement of the relevant proceeding followed by further delay afterwards all of which contributed to a finding that there had been unreasonable delay by the decision-maker.
87 In the present case it is unnecessary for me to determine whether any failure on the part of the applicant to prove unreasonable delay as at the date of the commencement of the proceeding is fatal to his claim for mandamus because, in my view, the applicant has failed to establish unreasonable delay at the date of commencement of this proceeding or at any time thereafter.
88 As mentioned, the applicant submitted that there was a delay in endorsing Ms Patel and Ms Smart to undertake the security briefing at a first step toward obtaining access to the QSA Statement of Grounds. The QSA was furnished to the Minister on 27 May 2021 and the departmental officers were endorsed to undertake the security briefing on 24 June 2021. I do not think the delay of less than one month in arranging such endorsement is material.
89 Of course, it is possible that if Ms Patel and Ms Smart had received the endorsement prior to 24 June 2021, they may have been able to travel to the ACT before the ACT Directions came into effect on 9 July 2021, undertake the security briefing, and then review the Statement of Grounds. However, this is a matter of conjecture on the part of the applicant, one that was not explored in Ms Turner's evidence, and which assumes that she had reason to believe that even a short delay of a few weeks in obtaining the necessary endorsement might result in Ms Patel and Ms Smart being prevented from travelling to the ACT for some indefinite period of time. There is no basis for finding that she was, or should have been, aware that the ACT would soon move to restrict movement across its border. I do not find the applicant's ex post facto analysis of events convincing.
90 As also mentioned, it was submitted by the applicant that steps should have been taken to arrange for Ms Patel and Ms Smart to travel to the ACT and to quarantine there for 14 days. In my opinion the effect of the ACT Directions, the need for exemptions, and the need to quarantine for 14 days, provides an adequate and reasonable explanation for Ms Patel and Ms Smart not being able to travel to the ACT since 9 July 2021. Ms Turner is required to take into account the safety and wellbeing of her staff before approving any such travel which, under the Protocol in place at all relevant times, may only be approved where it was considered operationally critical. In my opinion, the evidence does not support a finding that Ms Turner or any other officer has acted unreasonably in not arranging for an officer to travel to the ACT since 9 July 2021 or that any related delay in the consideration of the applicant's visa application flowing from what are essentially operational decisions made necessary by the COVID-19 pandemic justify a conclusion that there has been any unreasonable delay.
91 The last matter that I need to deal with is the applicant's submission in relation to Ms Turner's evidence concerning the availability of officers in the ACT who might undertake the security briefing in place of Ms Patel and Ms Smart. In her affidavit of 2 September 2021 (made a week before the hearing) Ms Turner said that she was making arrangements for this to occur. She explained that there were two officers who she had in mind to do this, one, an officer with limited availability due to home based schooling arrangements, and another from a different Division of the Department, who would need to be released from current duties. There was no cross-examination of Ms Turner in relation to this part of her affidavit and I have no reason to believe that she is not genuinely seeking to make the necessary arrangements to enable one of these officers to undertake the security briefing and to view the Statement of Grounds. According to Ms Turner's evidence, which I accept, a decision in relation to the relevant refugee and complementary protection criteria would be able to be made within a matter of days of that occurring subject to the need for any further interview. I am not persuaded that there has been any unreasonable delay on the part of Ms Turner in relation to these proposed arrangements or that this aspect of her evidence provides any support for the applicant's broader contention that the Minister's consideration of the protection visa application and a decision in relation to it has been the subject of unreasonable delay.
92 Counsel for the applicant understandably stressed the fact that her client had been in immigration detention for an extraordinarily lengthy period of time. That is true and it is unfortunate. But the protection visa application the subject of this proceeding was not made until 13 May 2020, approximately 16 months ago. The time the applicant spent in detention prior to that date is not attributable to any delay in the processing of that visa application.