LGC24 v Minister for Immigration and Multicultural Affairs [2025] FCA 253

(a) On 8 December 2023, a delegate of the Minister refused the application in an exercise of the discretion conferred by s 501(1) of the Migration Act. In considering whether to exercise that discretion, the delegate was required to comply with "Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (a direction given by the Minister pursuant to s 499 of the Migration Act). (I pause to interpolate that Direction No. 99 has now been replaced with Direction No. 110. It was not in dispute that there are differences between the two Directions, including that Direction No. 110 gives greater emphasis to considerations relating to the safety of the community.) The delegate provided written reasons which set out the various considerations to which regard had been had, and the reasoning process by which they were evaluated. The applicant did not refer me to any particular aspect of the delegate's reasons. Rather, I understand the applicant to rely on the fact that the reasons as a whole constitute a detailed articulation of the facts and issues arising in connection with the exercise of the character discretion in her case. The applicant plainly does not agree with the decision that the delegate made, but says that these reasons are "helpful", as a distillation of the relevant facts and issues, and that they (especially when considered in light of later considerations of the same issues) contribute to making the decision in relation to her protection visa application a "simple" one.

(b) The applicant sought review of that decision in the Administrative Appeals Tribunal. A "Statement of Facts, Issues, and Contentions" was filed on behalf of the Minister in the Tribunal on 1 March 2024. The applicant relies on the fact that this document sets out a reasoned articulation of the contentions open to the Minister in relation to the exercise of the character discretion concerning the applicant, made in light of the delegate's decision. In other words, this document represents a second careful consideration, this time by the Minister's legal representatives, of the manner in which the character discretion should be exercised in relation to the applicant. Once again, the applicant plainly disagrees with the conclusion for which the document contends; but says it is another "helpful" analysis that renders the protection visa decision a "simple" one.

(c) The Tribunal gave its decision, in favour of the applicant, on 27 March 2024. Again, the applicant says that this is a "helpful" document contributing to the simplicity of the decision in relation to the protection visa. The applicant submitted that this document is particularly helpful because it addresses the submissions put on behalf of the Minister in the Tribunal. The applicant pointed to paragraph [22] of the Tribunal's decision, which addressed a submission set out in paragraph [26] of the Minister's "Statement of Facts, Issues, and Contentions". The Minister had submitted that there was no evidence that the applicant had undertaken any rehabilitative programs or courses, or psychological support, to address her offending behaviour. The Tribunal, however, did not regard the absence of such evidence as being of any significance in the circumstances of the applicant's particular offending. The applicant says that it is this kind of deliberation by the Tribunal that is particularly "helpful".

(d) On 5 June 2024, the Minister exercised his power under s 501A(3) of the Migration Act to set aside the Tribunal's decision and refuse to grant the applicant a skilled visa. In making that decision, the Minister was not bound by Direction No. 99 and, in any event, the discretion was to be exercised having regard to a different criterion, namely, the Minister's assessment of the national interest. Nonetheless, the applicant relied on the Minister's reasons for his decision as representing yet another prior consideration of the applicant's circumstances in connection with a discretion to refuse her a visa in light of her failure to pass the character test. To put the matter plainly, the effect of the applicant's contentions was that all the thinking and consideration that needs to be done has, in substance, already been done.

1. It was after the Minister had personally decided to refuse the applicant's skilled visa that the applicant was taken into immigration detention, and it was shortly after that, on 20 June 2024, that she applied for a protection visa.
2. I have already mentioned that those applications were refused by a delegate on 27 June 2024, and that refusal was overturned by the Tribunal on 9 September 2024, with a finding that the applicant satisfied the criterion in s 36(2)(b)(i) of the Migration Act.
3. I will shortly set out the critical events relating to the consideration of the applicant's application following its remittal by the Tribunal. Before doing so, however, it is convenient to quote at length the evidence of Ms Malone about the standard procedures that apply to the consideration of remitted applications. That evidence usefully describes the relevant administrative structures of the Department, and the process in accordance with which applications generally are assessed. Ms Malone said:
   1. The Department's procedures as to the processing of protection visa applications are set out in detail in the Protection Visa Processing Guidelines.
   2. Where the Administrative Appeals Tribunal (and now the Administrative Review Tribunal) determines a protection visa application, the Department's policy is to undertake the following steps:

9.1 following the Tribunal's decision, officers of the Department update the status of the case in the ICSE [Integrated Client Services Environment] system to a status of either "affirmed", or "remitted";

9.2 if the status is "affirmed", the matter is not referred to a Protection Obligations Decision maker (PODM), however, there are a number of other processes which may commence (for example, removal processes);

9.3 if the status is "remitted", the National Allocations and Finalisation Section (NAFS) will allocate the case to a PODM within a Protections Assessment team for consideration. If the Tribunal remits an application with a direction that the applicant meets the criteria under subsection 36(2) of the Migration Act 1958, a PODM would need to determine whether the applicant satisfies the criteria under subsections 36(1C) and 36(2C) of the Act;

9.4. if a PODM requires additional information regarding the character issues, an interview may be arranged, or a letter is sent to ascertain additional information. The delegate must comply in this respect with the Code of Procedure set out in Part 2, Div 3, Subdivision AB of the Act;

9.5. if the PODM is considering a finding that the applicant does not satisfy the criteria set out in either subsection 36(1C) or 36(2C), then the application is referred to the International Obligations and Complex Cases Section and, in some cases, the International Law & Protection Obligations Section (ILPOS), to consult and advise in respect of the complex and sensitive legal and procedural issues that arise in such applications. Subject to that consultation, the PODM may refuse the application and the applicant is then notified of the decision and the option to seek merits review;

9.6. if the PODM finds that the applicant does satisfy the criteria in subsections 36(1C) and 36(2C), the case is referred to HPOB [Humanitarian Program Operations Branch], specifically the NAFS team, to conduct checks against the criteria in Schedule 2 of the Migration Regulations 1994 in relation to health, character and security requirements; and

9.7. if an assessment is made that an applicant might not meet the character requirements, the matter will be referred to the Visa Application and Character Consideration Unit (VACCU) for assessment against section 501 of the Act.

1. When a matter is referred to VACCU, the following steps are usually taken:

10.1. a referral to VACCU is received by the Decision Support Unit (DSU), who determine whether the case will be taken down a Visa Applicant Primary Assessment (VAPA) or Notice of Intention to Consider Refusal (NOICR) pathway. A VAPA pathway is where on assessment of the existing information DSU consider that the merits of a case may not warrant a full consideration eg where an applicant's circumstances are unlikely to result in a refusal;

10.2. if a referral is on a VAPA pathway, the DSU officer will create the VAPA for consideration by the character delegate. The character delegate may either agree that a full consideration is not warranted, disagree and request a NOICR, or request additional information/escalation; and

10.3. if the character delegate agrees a full consideration is not warranted, the DSU officer who created the VAPA will then finalise the case, the matter will be referred back to NAFS and in the ordinary course a decision will be made within a matter of days.

10.4. if the character delegate decides to exercise the discretion under section 501 of the Act to refuse the visa, then the visa will be refused and will be finally determined.

In addition to the usual steps taken when a matter is referred to ... VACCU ... the character delegate may also consider that a visa applicant may be of personal interest to the Minister. When that is the case, a submission is prepared for the Minister's review to enable the Minister to consider the exercise of available personal discretionary powers in relation to the visa application. If the Minister decides not to consider the exercise of a personal discretionary power, the Minister will return the application to the character delegate.

In my experience, whether a matter is referred to the Minister is based on a multitude of factors. The case is initially triaged based on the severity or nature of the crimes, the risk to the community, or other cases may be referred if there has been media interest or other events that may mean it is of particular interest to the Minister.

1. Returning to the key events in the consideration of the applicant's application following remittal:

(a) Arrangements were made to obtain information of various kinds from a number of sources, including the applicant herself, the Law Enforcement Liaison Unit within the Character and Cancellation Branch (CACB) of the Department, the Australian Federal Police, and the Australian Criminal Intelligence Commission. In light of the fact that the applicant does not contend that any act or omission prior to 11 December 2024 caused or contributed to any unreasonable delay, it is not necessary to set out all of the dates upon which those requests were made, and upon which information was supplied in response to them. I will simply record, by way of example, that the request made of the applicant, pursuant to s 56 of the Migration Act, was made on 25 September 2024, and the response to that request was received on 19 October 2024.

(b) On 8 November 2024, a PODM in the NAFS team made an assessment that the applicant satisfied the criterion in s 36(1C) of the Migration Act. On that same day, NAFS referred that assessment to VACCU for an assessment under s 501 of the Migration Act.

(c) On 12 November 2024, an officer within VACCU informed NAFS that it had determined that the applicant may be liable for refusal of her visa application under s 501(1) of the Migration Act, and that VACCU would be issuing a NOICR to the applicant.

(d) The NOICR was issued on 13 November 2024. The applicant provided a response to the notice on 11 December 2024, which totalled some 164 pages.

(e) That response was considered by VACCU, which, on 17 December 2024 provided a "refusal consideration submission package" to the "CACB Response Taskforce Team" (which is responsible for handling priority assessments).

(f) On 20 December 2024, the applicant commenced these proceedings.

(g) On 23 December 2024, Ms Malone affirmed her first affidavit. The final paragraph of that affidavit stated that it was "expected that a delegate will be able to consider the case early in the new year 2025". That expectation was confirmed the following day, on 24 December 2024, at the first return of these proceedings before another judge of the Court.

(h) The Department had a "shut-down" period from 24 December 2024 to 2 January 2025, but even upon reopening, staffing levels were lower than usual, owing to people taking leave.

(i) On 13 January 2025 a Departmental case officer within CACB completed a draft refusal consideration statement of reasons. On that same day, the draft was, in accordance with the Department's standard procedures, provided to a manager for quality assurance. That manager reviewed the draft and, in conjunction with a case officer, revised it. The draft was sent to a character delegate of the Minister for consideration on 23 January 2025.

(j) The character delegate determined, on 24 January 2025, that the applicant may be of personal interest to the Minister, and asked that a submission be escalated to the Minister to enable the Minister to consider the exercise of available personal discretionary powers.

(k) On 28 January 2025, the Department requested a copy of the sentencing remarks in relation to the applicant's criminal conviction from the District Court of New South Wales.

(l) On 31 January 2025, before the sentencing remarks had been received, a submission on the applicant's matter was sent to the Minister. This step was taken without waiting for the sentencing remarks because it was not known how long it would take for the District Court to be able to provide them.

(m) On 6 February 2025, the District Court provided the sentencing remarks and, as a result, on 12 February 2025, the Ministerial submission was recalled, so that it could be updated in light of the content of that document.

(n) In addition, it was necessary to provide the applicant with natural justice in relation to the new information in the sentencing remarks. As such, also on 12 February 2025, a letter was sent to the applicant's solicitor inviting comment on the new information, and requesting a response within 14 days (that is, by 26 February 2025).

(o) On 26 February 2025, the applicant's solicitor sought a seven-day extension within which to reply to the natural justice letter (that is, to 5 March 2025). The requested extension was granted on 27 February 2025. The evidence did not disclose whether any response had been provided, and if it had, on what date.

(p) On 2 March 2025, the applicant's lawyers wrote to VACCU contending that the applicant had not been provided with natural justice, and requesting certain categories of documents be provided to her. In oral submissions, it was stated that this contention relates only to the extent that a personal decision by the Minister is in contemplation. In other words, if a Ministerial delegate were to make the decision, then the applicant accepts that she has been provided with natural justice (and thus that the delegate may proceed to make a decision).

1. The applicant's case that the application was a "simple" one, that should have been determined before 20 December 2024 (or, in the alternative, before now), was based on the following propositions:

(a) The criminal punishment that the applicant received (i.e., a sentence of 12 months' imprisonment) was the very minimum that met the statutory definition of a "substantial criminal record".

(b) It is now nearly eight years since the applicant's conviction, and in that period she has not engaged in any further offending. That is said to show that she has been rehabilitated, which is an important consideration under Direction No. 110.

(c) The issues relevant to the exercise of the s 501 discretion, and the material upon which the decision is to be made, were substantially the same for both the skilled visa and the protection visa. The fact that that material, and those issues, had already been considered in the context of the application for the former visa meant that very little time should be required in order to decide the protection visa application.

(d) To the extent that any new considerations had arisen since the determination of the skilled visa, they were all uniformly in favour of the applicant.

1. Overall, it was the applicant's contention that her case was straightforward, strong, and that the bulk of the necessary analysis had already been undertaken in connection with her application for a skilled visa.
2. The respondents, on the other hand, sought to emphasise that the application was not as "simple" as the applicant would have it. They submitted that:

(a) The nature of the offending conduct that caused the applicant to fail the character test is only the beginning of the analysis. There are a wide range of considerations, going well beyond the nature of the offending in question, that are relevant to the exercise of the discretion under s 501 of the Migration Act.

(b) It goes without saying that a decision-maker could not simply adopt the reasoning of a prior decision-maker who considered the exercise of the s 501 discretion in relation to an application for a different visa. Even if the material upon which the decisions were to be made was precisely the same (and the respondents did not accept that it was), a decision-maker was required to undertake their own genuine consideration of the issues and come to their own view.

(c) The criteria against which the discretion is to be exercised (to the extent exercised by a Ministerial delegate) have changed since the consideration of the skilled visa (Direction No. 110 commenced on 21 June 2024). For example, unlike the prior Direction No. 99, Direction No. 110 provides that the safety of the Australian community "is the highest priority of the Australian Government" (at 8.1).

(d) It is also the case that the exercise of the discretion in the context of a different visa may give rise to different considerations. That is to say, it is possible to regard the fact that the s 501 discretion is being exercised in the context of an application for a protection visa as making relevant different matters than would be the case in the context of an application for a skilled visa, or at the very least it may affect the relative weight to be ascribed to the same factors. Further potential complexity is added by reason of the fact that the basis upon which the applicant's protection visa application is made is by reason of her satisfaction of s 36(2)(b) of the Migration Act, rather than s 36(2)(a).

(e) The information upon which the protection visa application was to be determined was different to that by reference to which the skilled visa was to be determined. That information included material submitted as part of the 164-page response to the NOICR, dated 11 December 2024, which post-dated the Minister's personal refusal of the skilled visa on 5 June 2024, including:

(i) A 60-page record of responses received in relation to the applicant's application for a protection visa, commenced on 20 June 2024;

(ii) Various educational and professional certificates, issued between 6 September 2024 and 2 December 2024;

(iii) The Tribunal's decision record dated 9 September 2024;

(iv) A National Police Check dated 17 October 2024;

(v) A statutory declaration of the applicant dated 19 October 2024, in which the applicant discussed her criminal offending, her remorse, her rehabilitation, and the support she receives from, and the contribution she makes to, the community;

(vi) A "Personal Circumstances Form" dated 28 November 2024;

(vii) A ten-page submission prepared by the applicant's counsel, dated 11 December 2024;

(viii) A two-page "comment on information" prepared by the applicant's counsel, dated 11 December 2024;

(ix) A ninety-odd page report of the Australian Human Rights Commission entitled "Not just an afterthought: The experience of women in immigration detention", dated December 2024.

(f) Any decision-maker would need time to consider that new information, and assess it in light of the earlier information, and the issues generally. The significance of the new information may be observed in the fact that there is extensive consideration of it in the draft statement of reasons prepared for the Minister's consideration (at, e.g., paragraphs [7], [24], [27]-[28], [33]-[35], [38], [40], [43]-[44], [48]-[51], [56], [62]-[65], and [69]). As outlined above, a draft of those reasons was completed by a case officer on 13 January 2025, with the document then reviewed and updated by a manager, before being sent to a character delegate on 23 January 2025 (and onwards to the Minister on 31 January 2025, before being recalled so that the draft could incorporate the subsequently-provided District Court sentencing remarks).

1. Even if the matter was as simple as the applicant would have it, I am not persuaded that there would have been unreasonable delay in the relevant sense in the failure to make a decision by 20 December 2024 (that is, a mere nine days after the applicant submitted her 164-page response to the NOICR). But in any event, each of the matters identified by the respondents has force and I accept them all. They put beyond doubt that a failure to make a decision within nine days of the provision of the applicant's response to the NOICR cannot of itself be regarded as an unreasonable delay.
2. The evidence demonstrates that that response was considered promptly by VACCU, and that by 17 December 2024, a "refusal consideration submission package" had been provided to the "CACB Response Taskforce Team". The expectation at that stage was that, following the Department's standard shut-down period over Christmas and the New Year, that package would be considered by a delegate early in 2025. The standard processes calculated to ensure high-quality decision-making were (and were being) followed. A failure to deviate from those processes by reason of the asserted "simplicity" of the application (which I do not accept in any event) cannot be justified, let alone characterised as unreasonable. The fact that those processes were not completed within nine days does not strike me as remarkable. Nothing in the course of events comes even close to suggesting neglect, oversight, perversity or capriciousness. Indeed, to the contrary, it would appear that the Department engaged promptly and substantively with the material provided by the applicant. The demands of rigorous and consistent decision-making to which I have previously referred provide more than ample justification for the process followed, and the time taken, between 11 and 20 December 2024.
3. What, then, of the period following 20 December 2024? Once again, I am not persuaded that there has been neglect, oversight, perversity or capriciousness. The factual narrative set out above shows that work resumed on the application promptly after the Department's shut-down period. By 13 January 2025, a draft statement of reasons had been prepared by a case officer and provided to a manager in accordance with standard Departmental practice for review. That review was concluded within ten days, and a final draft sent to a Ministerial delegate for consideration on 23 January 2025. The very next day, the delegate determined that the application may be of personal interest to the Minister, and asked for a Ministerial submission to be prepared to enable the Minister to determine whether he wished to exercise his personal discretionary powers.
4. Pausing there, the time period taken for each of those steps (periods ranging from one day to about a week and a half) appear, particularly in the context of what I would infer to be a busy Department, manifestly reasonable. I would be of that view, even if the matter was as simple as the applicant submitted. As it happens, I accept the respondents' submissions concerning the additional complexity of the matter left out of the applicant's summary. On no view were the circumstances and features of the application such that it is possible to infer from the passage of such short periods of time that there has been unreasonable delay. Indeed, once again, the fact that processes were followed to ensure rigorous and careful consideration of the relevant issues, with appropriate opportunities for checking and review, are inconsistent with the existence of neglect, oversight, perversity and capriciousness.
5. The applicant submitted that unreasonableness could be inferred from the fact that on 23 December 2024, Ms Malone had affirmed an affidavit in which she said that it was "expected that a delegate will be able to consider the case early in the new year 2025", and that a similar expectation had been conveyed to this Court by the respondents' legal representative on 24 December 2024. I do not accept that submission. I am satisfied that the evidence demonstrates that the expectation was met (that is, the application was in fact considered by a delegate in January 2025). The evidence discloses why a decision was not made in relation to the application at the time the delegate first considered it (i.e., because it was referred for the Minister's personal consideration). For reasons to which I will now turn, I do not regard those circumstances as giving rise to any unreasonable delay.
6. It was perhaps the delegate's decision to refer the application to the Minister for consideration that became the real focus of the applicant's case. The applicant submitted that the reasons for referring her application to the Minister were "opaque". That is true to an extent, in that the respondents did not lead evidence as to the precise subjective reasons of the delegate when he or she formed the view that this application may be of personal interest to the Minister. In light of the way in which the applicant's case developed, that is perhaps unsurprising. But the respondents did adduce evidence of the fact that the decision to refer a matter to the Minister is "based on a multitude of factors", and that the fundamental basis for referral is the assessment of a delegate that the matter may be of interest to the Minister. The natural inference from Ms Malone's evidence was that the decision to refer was made in accordance with the usual practices of the Department. There was no cross-examination of Ms Malone to establish that the referral involved any departure from those practices.
7. In circumstances where one available pathway under the Migration Act for making decisions in relation to applications such as that in issue here is for them to be made by the Minister personally, I do not think that it can be inferred from the fact that a delegate considered that the Minister may wish to exercise his personal powers that there has been unreasonable delay. It certainly cannot be inferred from the referral of the application to the Minister that the failure to make a decision is a result of oversight, neglect, perversity or capriciousness. The decision-making framework for which the Migration Act provides includes a reasonable opportunity for the Minister or a delegate to consider the exercise of relevant powers under s 501. The referral to the Minister appears, on the evidence, to have been made in accordance with the Department's standard processes, and there is nothing about the application which would allow an inference of unreasonableness naturally to be drawn.
8. Nor is there any aspect of the time taken to perform relevant steps in connection with the referral that provides a basis for a finding of unreasonable delay. Having determined on 24 January 2025 that the application should be referred to the Minister, a submission was prepared and sent up within a week (on 31 January 2025). The decision was made not to await receipt of the District Court sentencing remarks, which had been requested on 28 January 2025, on the basis that it was not known how long it would take for that Court to provide them. As it happens, they were provided on 6 February 2025, with the result that the Ministerial submission was recalled, and a natural justice letter sent to the applicant.
9. (I interpolate at this point that the applicant did not make any submission to the effect that the fact that the District Court sentencing remarks had not been requested until 28 January 2025 involved unreasonable delay.)
10. I have already recorded that the applicant's solicitor was not able to provide any submission concerning the District Court sentencing remarks within the stipulated 14-day period, and requested a seven-day extension. The fact that the applicant's own lawyers required 21 days within which to consider and respond on a discrete topic might be thought to be inconsistent with the applicant's case that the time taken by the respondents to consider her application generally involves unreasonable delay. At the very least, though, the period from the issuance of the natural justice letter to the date upon which the applicant provided a response must be excluded from the period of alleged unreasonable delay. As for the subsequent period, the response was, in accordance with the extended deadline, due by 5 March 2025. In circumstances where I do not know whether a response was provided on that date, or indeed at all, and if it was, in what terms, but where I do know that the applicant considered that she needed 21 days to prepare it, I would not regard the applicant as having discharged her burden of proof as to the demonstration of unreasonable delay in relation to the period of time from 5 March 2025 to today.

1. For these reasons, I am not persuaded that there has been any unreasonable delay in the failure to determine the applicant's application by 20 December 2024, or in the alternative, up until today. It follows that I refuse the applicant's claim insofar as it seeks a writ of mandamus.
2. No party submitted that costs should not follow the event, and I would order that the applicant pay the respondents' costs of the claim for mandamus.
3. The parties should contact my chambers to arrange for the balance of the Originating Application to be listed for case management before me on a convenient date.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.