AQM18
48 The argument relied upon by the applicant as to delay was that raised in AQM18 and the AQM18 appeal.
49 In AQM18, in March 2017 the Minister gave notice to the applicant that he was considering setting aside the Tribunal's decision. The applicant made representations in April 2017. On 9 January 2018 the Minister exercised the power under s 501A(2) to set aside the decision of the Tribunal and refuse the application for a protection visa, a time period of some 10 months. In this case the time period between the corresponding steps was 13 months: March 2018 to April 2019.
50 The primary judge rejected an argument that the Minister's decision under s 501A(2) was made without jurisdiction because the purported exercise of power occurred outside a reasonable time. Although the applicant was successful on other grounds, she appealed the rejection of the delay ground. She sought a declaration on appeal that the Minister no longer had the power to make a decision under s 501A(2) because the time in which such a decision could lawfully be made had expired.
51 The Full Court noted the following:
[30] The appellant submitted to the primary judge, and maintained before this Court on appeal, that the case law supported the following propositions which were summarised by the primary judge at J[59]:
(a) A delay which is not satisfactorily explained is to be regarded as unreasonable: BMF16 at [27] (citing various authorities). This means the onus will be on the decision-maker to provide a reasonable explanation for a delay: BMF16 at [28].
(b) What is a 'reasonable time' is objectively determined: Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation (2001) 106 FCR 203 (Bidjara) at [28].
(c) In assessing the bounds of a 'reasonable time', the legislative context is informative: BMF16 at [25]; Bidjara at [28]-[31]. Thus, if the statutory purpose of the power is for 'prophylactic' protection of the public, 'there should be as little delay as possible': Kardas v Australian Securities Commission (1998) 53 ALD 303 at 313. In BMF16, this was explained in terms of 'the importance of [the exercise of the power] both to the public and to the interests of the persons it is directed to address': BMF16 at [25].
(d) Relatedly, the 'likely prejudicial impact upon interest-holders of any delay' is important: BMF16 at [25] and [29]. Thus, it was significant in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (Wei) at 477 that the delay caused the affected persons to become illegal entrants.
(e) Prejudice is especially significant where delay affects the fundamental right to liberty; statutes are to be construed to give maximum effect to that fundamental right unless there is clear legislative intent to the contrary: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532. See also Coco v R (1994) 179 CLR 427 at 437.
(f) Administrative convenience does not factor into what is a 'reasonable time': Commonwealth v Fernando (2012) 200 FCR 1 at [91]. Similarly, a lack of resourcing does not make a delay reasonable: Wei at 477.
(g) The consequence of a decision being made after the expiry of the 'reasonable time' limit is that it is out of time, beyond the power of the decision-maker, and therefore invalid: Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573-574.
[31] His Honour did not expressly deal with each of the propositions set out above, said to emerge from the case law. He did however, consistently with a concession made by the Minister, accept at J[61] that, 'as a principle of statutory construction, where no time limit is prescribed for the doing of a particular act, a court may imply a requirement that the act be done within a reasonable time', citing Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-574.
[32] His Honour also set out at J[61] the test for determining whether a reasonable time limit has been exceeded, namely that set out in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292:
… [W]hether 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 in consequence of neglect, oversight or perversity.
[33] The primary judge concluded that the delay was not unreasonable.
52 Before the Full Court the Minister sought to rely on a notice of contention that included a proposed contention in the following terms:
The judgment of the Court below … should be affirmed on the additional basis that there is no duty to exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time.
53 The Full Court did not determine the question, stating:
[36] It is not necessary to consider the matters raised by the proposed notice of contention or each of the propositions which the appellant submitted emerge from the cases as set out at paragraph [30] above. That is because it was not established that there was a failure to exercise the power under s 501A(2) within a reasonable time, assuming there to be such a duty.
54 Relevant facts in AQM18 included:
(a) for a period of some seven months, the Department was addressing the reasons in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576, reasons which affected a small cohort of cases including the applicant's, and which was delivered on 3 May 2017;
(b) the Department recalled the submission that had previously been provided (the 'white folder submission') from 'Ministerial Support' in order to update the submissions following DMH16;
(c) after it was returned, the white folder submission was again recalled from the Minister's office and it was evident that the reason was that in light of DMH16 certain wording with respect to the issue raised by the decision was being cleared within the Department's office;
(d) the submission for decision was forwarded to the Minister on 5 December 2017; and
(e) during that time the appellant attempted suicide.
55 The Full Court in AQM18 also recorded the primary judge's reliance on the return of the submission to the Department as being 'consistent with careful consideration being given to the issues raised by the case'. It agreed with the primary judge that other relevant matters included that it was not to the point that the material had previously been considered by the Tribunal and a delegate of the Minister, taking into account that the Minister was required to bring an independent mind to consideration of whether to exercise his discretion under s 501A(2), and also had to consider whether it was in the national interest, a criterion that did not apply to the Tribunal.
56 Whilst not deciding the question of whether it is implied into the statutory discretion or power under s 501A that it must be exercised with a reasonable time, the Full Court had regard to the nature of the power and the impact of it on the appellant.
57 The Full Court cited the following extract from BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530:
[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.
58 It said the following of the power under s 501A:
[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.
[67] It was not established that there were lengthy periods of unexplained inactivity which demanded any further explanation than was able to be inferred from the course of events. It was regrettable that the decision took as long as it did, especially in light of the appellant's psychological state, but explicable in light of the events described above, including the perceived need to consider what position to adopt in respect of matters seen to be affected by the decision in DMH16.
59 The question of whether there was an obligation on the Minister to exercise his power under s 501BA of the Act within a reasonable time frame arose on appeal but was not determined in DOB18 v Minister for Home Affairs [2019] FCAFC 63. In that case there was a delay of 16½ months between the date of the Tribunal's decision and the applicant being informed of the Minister's decision. Because unreasonable delay had not been raised before the primary judge, and because the issue raised factual matters that may have been addressed by evidence from the Minister had it been raised, leave to pursue the ground of appeal was refused.
60 Regardless, Robertson J set out in his reasons the respective arguments: see DOB18 at [151]-[163]. It is not necessary to repeat them, save to note that the Minister contended that the appellant was unable to establish that the exercise of the discretionary power in s 501BA(2) was conditioned by a requirement that it be performed within a reasonable time.
61 The applicant in this matter made submissions analogous to and consistent with those summarised in AQM18 and included above at [51].
62 In addition, during the hearing counsel for the applicant developed a submission that the exercise of power under s 501A is but part of the power of a Minister to grant or refuse to grant a visa under s 65. Counsel referred to the duty to exercise the power to grant a visa if the criteria of s 65 are met and submitted that the consideration of whether to exercise power under s 501A is 'but one step in the visa application process' and so subject to 'the same duty that the Minister has in deciding any visa application to [exercise power] reasonably and [make a decision] within a reasonable time'. Counsel said s 501A was 'merely the last power in a long line of powers to refuse to grant the visa for character reasons'. The applicant referred to Shahi v Minister for Immigration and Citizenship [2011] HCA 52; (2011) 246 CLR 163 at [28].
63 As to relief, the applicant submits that the failure to comply with the implied condition to make a decision within a reasonable time means that any decision eventually made is beyond the Minister's power and therefore invalid. The applicant submits that although the delay did not deprive the applicant of a successful outcome, it falls within an exception recognised in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [40] and [72] in that the delay demonstrated a lack of respect for the dignity of the applicant as an individual in circumstances where the applicant was in detention with deteriorating mental health. The applicant therefore seeks a writ of prohibition against the Minister or a declaration that the Minister's decision was invalid, with the result, it is contended, that the Tribunal's decision must stand.
64 The Minister's submissions can be summarised as follows:
(a) the applicant can point to no authority in support of its proposition as to inferring a time constraint on the Minister;
(b) whether the power in s 501A(2) is subject to exercise within a reasonable period is a question of statutory construction;
(c) there is nothing in the text, or context, of s 501A that would permit the Court to infer a legislative intention that the Minister may only exercise the power under s 501A(2) within a certain period of time. To that end, to the extent the applicant relies upon the authority of the High Court in Koon Wing Lau v Calwell (1949) 80 CLR 533 in support of the broad proposition that all decisions required under statute, absent a specified time limit, are to be made within a reasonable time, the reliance is misplaced;
(d) the principle from Koon Wing Lau may apply in respect of statutory obligations or duties, but it does not follow that it applies to any and every statutory power. Consideration ultimately must be given to the statutory power in question;
(e) for instance, it may be readily accepted that it is implicit in the Act that the Minister promptly consider (and not unreasonably delay in considering) a valid application for a visa other than a protection visa (eg, Shahi v Minister for Immigration and Citizenship at [28]): that is because s 65 imposes a duty on the Minister to consider a valid application for a visa;
(f) similarly, in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [102] Gageler J referred to the duty of the Migration Review Tribunal to conduct a review of a decision, and that it occur within what, in all the circumstances, is a reasonable time: see also Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 at [37]; Giddings v Australian Information Commissioner [2017] FCA 677 at [26]; and CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [313], [376];
(g) by way of contradistinction, s 501A(2) provides the Minister with a non-compellable power exercisable only by the Minister personally: s 501A(5). The Minister does not have a duty to consider the exercise of that power, whether or not he is requested to do so or in any other circumstances: s 501A(6). Indeed, the Full Court of this Court has described the power as ensuring that 'the Minister is free to exercise the power or not as he chooses': Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at [107];
(h) having regard to the nature of the statutory power in question, it would be inimical to the clear purpose and intent of the non-compellable power if the Court were to infer that its exercise were subject to an implied time limitation;
(i) indefinite detention of itself is no reason to infer that the power must be exercised within a reasonable time. It must be kept in mind that under the Act there are many and varied options open to the Minister to take various courses and for an applicant to pursue such courses: for example, it may be possible depending on the circumstances to grant a particular visa to relinquish someone from immigration detention whilst the process is being undertaken. It is not the case that simply because someone is in detention and that there is a long drawn out process concerning a visa application that a person must indefinitely be detained for the duration of that process: there is a suite of powers available to be exercised in appropriate cases;
(j) as to the applicant's submission based on s 65, whilst one can readily accept that s 501A(2) might be seen as part of a step in a process of a visa application, it is a standalone discretionary and non-compellable power that has a protective purpose, to ensure that persons who the Minister is satisfied satisfy particular criteria, including criteria relating to the national interest, should have their visa refused notwithstanding other matters that have supported the grant of a visa;
(k) it is important to remember the distinction between particular statutory powers being exercised or being required to be exercised within a reasonable time: the authorities that address that question concerned statutory duties or obligations and not merely discretionary powers;
(l) the applicant has not established a recognised basis for relief: there is no basis for an order of mandamus (as a decision was in fact made in this case); the applicant's contention that upon breach of the asserted obligation to exercise power the Minister's power lapses ignores the lack of a statutory timeframe for the exercise of the power (in contrast to that considered in Koon Wing Lau); BMF16 is not authority to the contrary because in that case the Court was concerned with the citizenship approval regime and his Honour found for reasons unrelated to delay that the Minister's refusal decision were invalid and 'no decision at all' (at [226]); and the applicant has not established how delay would have materially affected the outcome of the Minister's decision (relying on Hossain).