FEDERAL COURT OF AUSTRALIA

ASP15 v Commonwealth of Australia [2016] FCAFC 145

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court:

1    These are appeals from orders of a judge of the Federal Circuit Court of Australia made on 11 December 2015 by which the appellants’ amended applications and related statements of claim were dismissed. The proceedings in both matters were originally commenced in the High Court of Australia on 4 June 2015, and together were remitted by consent to the Federal Circuit Court. The two matters were heard together both in that Court below and in this Court. There is no material distinction between the facts, evidence and issues to be determined in the two appeals.

2    The appellants are brothers from Sri Lanka who came to Australia by boat. In mid-February 2012, the younger brother (AKZ15) arrived at Christmas Island. Shortly thereafter, in early April 2012, the older brother (ASP15) also arrived at Christmas Island. In late 2012 the appellants separately applied for protection visas, after the predecessor of the second respondent (the Minister) lifted a statutory restriction on making such applications. In December 2015, after the primary judge’s decision, the appellants were each granted a temporary protection visa and released from immigration detention.

3    The central factual and legal issues in the Court below and on appeal to this Court relate to the delay in determining the appellants’ visa applications. Each of the appellants asserts that the delay in being granted a visa and thereby in being released from immigration detention exceeded the authorisation under the Migration Act 1958 (Cth) to detain them. They claim this unlawful detention constituted the tort of false imprisonment, rely in particular on their period in detention between October 2014 and December 2015, and seek damages from the Commonwealth (the first respondent) and from the Minister. Because of their release from detention after the primary judge handed down his decision, the issue of a remedy to secure their release became moot.

4    The respondents’ primary response is that even if a delay exceeds the time within which a visa decision is required to be made, the relevant remedy is to seek a writ of mandamus. It is submitted that on the proper construction of the relevant provisions of the Migration Act a delay beyond the time required to make a decision does not result in the detention being unlawful, such that no issue of false imprisonment arises.

5    In the alternative, the Minister submits that the delay was not excessive in all the circumstances, so that on the facts of each of these cases the detention was not unlawful.

6    For the reasons that follow, both appeals must be dismissed, with costs.

History of the proceedings

7    In April 2015, the appellants commenced proceedings in this Court for writs of mandamus and habeas corpus and a claim for damages for wrongful imprisonment. On 2 June 2015 those proceedings were discontinued, in light of s 494AA of the Migration Act.

8    On 4 June 2015, the appellants commenced proceedings in the High Court for writs of mandamus and habeas corpus and a claim for damages for wrongful imprisonment. On 29 July 2015, the High Court proceedings were remitted by consent to the Federal Circuit Court.

9    On 10 September 2015, the primary judge dismissed the consent application for transfer of both proceedings to this Court. At the same time, his Honour, inter alia, determined that the questions of fact and law other than questions of causation and quantification of damages should be heard and determined first.

10    On 7 October 2015, the primary judge upheld a public interest immunity claim against the production of certain documents sought by the appellants on notice.

11    On 8 December 2015, the primary judge heard the appellants’ applications for writs of mandamus and habeas corpus and the threshold questions now under appeal concerning their claims for damages for wrongful imprisonment.

12    On 11 December 2015, the primary judge dismissed the appellants’ applications, and therefore did not determine questions of causation and quantification of damages. The appellants were granted temporary protection visas five days later, to expire on 16 December 2018.

13    On 28 December 2015, the appellants commenced these appeal proceedings. The appeals are now effectively confined to whether or not the appellants may succeed on their claim for damages for false imprisonment by reason of unlawful detention.

Grounds maintained on appeal and the Minister’s notice of contention

14    The amended notices of appeal were substantially similar for each appellant, save as to some factual detail. Therefore grounds 1 and 2 of the amended notice of appeal for the older brother only are reproduced below. Strikethrough and underlined text is as per the original amended notice of appeal. Ground 3 is not reproduced as it was abandoned in both appeals, with the consequence that any distinction between temporary and permanent protection visas need not be determined.

ASP15 [Older brother]:

1.    His Honour erred in failing to find that the second respondent Minister (the Minister) had breached his duty to consider and determine the appellant’s application for a Protection (Class XA) visa within a reasonable time having regard to the circumstances of the case in the context of the decision making framework established by the Act, including s 65A Migration Act 1958 prior to its repeal on 16 December 2014.

Particulars

a.    His Honour erred in finding reasonable the practice of the Department of Immigration in not referring the appellant for public interest criterion (PIC) 4001 health and character checks until after the receipt of a non-prejudicial security assessment from ASIO; and in finding that the PIC 4001 checks take place before the ASIO assessment was not practicable.

b.    The appellant contends the deferral of the PIC 4001 checks from the times of the first remittal (until the first delegate’s decision) and the second remittal until August 2015 was unreasonable and that it was reasonable and reasonably practicable for the checks to have been commenced at the time of either remittal.

c.    On 5 October 2012 the High Court found the prescription of PIC 4002 ASIO security assessment as a criterion for the grant of a protection visa was beyond the power conferred by s 31(3) of the Act and was invalid.

d.    Since 28 May 2014 s 36(1B) of the Act provides only that it is a criterion for the grant of a Protection visa that the appellant “is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

e.    His Honour erred in finding the time taken to perform the assessment was reasonable given the seriousness of the allegation against the appellant. The appellant contends the allegations of murder, abduction and rape (all denied and at the date of hearing no longer matters of controversy to the Department) were not relevant to security within the meaning of that term in s 4 of the Australian Security Intelligence Organisation Act 1979.

f.    His Honour failed to properly consider the evidence at trial and erred in making the factual finding that the appellant’s claim that a court case against him and his brother involved the appellant and his brother in the alleged rape of a 15 year old girl in 2006. The appellant contends the evidence was that there was no allegation of rape and that the appellant was in a relationship with and eloped with the girl when he was 17.

g.    His Honour erred in finding, on the basis of the (no longer controversial) allegations of people smuggling, murder, abduction and rape that it is open that Art 1F of the Refugees Convention applies to exclude the appellant and his brother from protection. The appellant contends that unsubstantiated allegations of even serious non-political crimes do not engage Art 1F or s 36(2C) of the Act and that the admitted level of the appellant’s involvement in people smuggling did not amount to a serious non-political crime. Further, both the original delegate and the RRT made findings of facts that the appellant was not involved in murder or the abduction and abuse of the 15 year old girl his brother AKZ15 claimed to have eloped with when the appellant AKZ15 was 17.

h.    His Honour erred in finding that the withdrawal of the consent given by the appellant and his brother to the disclosure of identifying information to the Sri Lanka authorities prevented the Australian authorities from verifying the nature or evidence underlying the charges against them. The appellant contends the Australian authorities were prevented from doing this by s 336F of the Act and that it was reasonable for the appellant and his brother to elect not to relinquish the protection afforded by this section to them as applicants for protection visas.

i.    His Honour erred in finding that the delay in processing was not unreasonable and that a remedy of mandamus was not open because adverse findings under s 36(1C) of the Act and in relation to Art 1F of the Refugees Convention were still open. The appellant contends that the information in relation to the allegations of murder, abduction and rape has been known since 2012, are unsubstantiated, and have been decided upon by the first delegate and the RRT, and that these allegations and those of involvement of the appellant in people smuggling are no longer controversial to the Department, at least since the non-prejudicial ASIO security assessment in July 2015 and the PIC 4001 referral in August 2015.

j.    His Honour erred in finding that the repeal of s 65A of the Act meant there was no basis for any alleged breach of duty by the Minister under that provision in the processing of the application. The appellant contends the Minister had already failed to obey to the command of s 65A in October 2014, prior to its repeal in December 2014, and this failure was also relevant to the Court’s assessment of the reasonableness of the delay in processing the application.

k.    The Court erred in failing to properly consider evidence led at trial in relation to

i.    The timing, provenance, quality and credibility of the allegation of murder made against the appellant and his brother.

ii.    The delay in investigating the allegation of murder and the consequent delays in processing the visa application.

iii.    The factual findings of the RRT against the existence of any case against the appellant or his brother in respect of the appellant’s brother’s relationship with a 15 year old girl in 2006 and against the existence of a murder case against him or his brother.

2.    The Court erred in failing to find that the appellant’s detention since 14 6 October 2014 was not lawful in that since from the time of the decision of the Minister to permit the appellant to apply for a Protection visa the purpose of the detention, ie the receiving, investigating and determining an application for a visa, those purposes had not been pursued or carried into effect as soon as reasonable [sic] practicable having regard to the circumstances of the case in the context of the decision making framework established by the Act.

Particulars

a.    The appellant repeats the particulars to ground one.

b.    The appellant contends the respondent failed to take up or discharge the legal burden of proof of what was reasonable [sic] practicable in relation to the purpose of his detention either in the time taken by ASIO to grant a non-prejudicial security assessment, or in the practice of deferring PIC 4001 checks until after the ASIO assessment.

15    The Minister filed notices of contention in both appeals. That part of the notices which was pressed was:

1.    Even if the [Minister] failed to consider and determine the appellant’s application for a Protection (Class XA) within a reasonable time, or as soon as reasonably practicable, this could not as a matter of law cause the detention of the appellant to become unlawful.

16    This contention by the Minister captures the essential dispute between the parties on ground 2, assuming success of the appellants on ground 1. It is convenient first to address the legal question raised by ground 2 as to what the consequence is of unreasonable delay in making a protection visa decision, and then proceed to the question raised by ground 1 as to whether that time was in fact exceeded. However, before doing so it is necessary to consider the effect of the repeal of the statutory time limit for making protection visa decisions contained in the former s 65A of the Migration Act and any time limit to be implied for making a protection visa decision under s 65 upon that repeal taking effect.

Repeal of s 65A of the Migration Act and the time limit for a protection visa decision

17    The former s 65A of the Migration Act provided a 90-day decision deadline for the determination of protection visa applications by the Minister. Immediately prior to its repeal on 16 December 2014, s 65A provided as follows:

65A    Period within which Minister must make decision on protection visas

(1)    If an application for a protection visa:

(a)    was validly made under section 46; or

(b)    was remitted by any court or tribunal to the Minister for reconsideration;

then the Minister must make a decision under section 65 within 90 days starting on:

(c)    the day on which the application for the protection visa was made or remitted; or

(d)    in the circumstances prescribed by the regulations—the day prescribed by the regulations.

(2)    Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.

18    Section 65A was still in force at the time of the second remittals by the Tribunal on 10 July 2014 for the older brother, and on 18 July 2014 for the younger brother. Therefore, at that time there was a statutory obligation imposed on the Minister to make a decision as to the grant or refusal of a valid protection visa application within 90 days. That produced a statutory decision deadline for the older brother of 8 October 2014 and for the younger brother of 16 October 2014. Neither deadline was met. However, s 65A was repealed retroactively and it was not disputed that the practical and legal effect was that the statutory time limit did not apply to any protection visa application that was outstanding and still to be determined at the time of repeal.

19    The provisions by which s 65A was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Legacy Act) are as follows:

Schedule 7—Caseload management

Part 1—Amendments

Migration Act 1958

…

4    Section 65A

Repeal the section.

…

Part 2—Application and savings

16    Application of amendments

…

(2)    The repeal of section 65A of the Migration Act 1958 made by Part 1 of this Schedule applies in relation to an application for a protection visa:

(a)    made on or after the commencement of that Part; or

(b)    made before the commencement of that Part but not finally determined as at the commencement of that Part.

20    With the removal of a statutory time limit the existence of any time period within which a decision must be made on a valid protection visa application is a matter of statutory interpretation, arising from the obligations imposed by ss 47 and 65 of the Migration Act. The plurality in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179, commenting about visas for which there was no statutory time limit for making a decision, and thus now applicable to the appellants as well, said that this was, by implication, to be performed within a “reasonable time”, citing several authorities. Their Honours observed at 189-190 [37] that:

… What amounts to a reasonable time is ultimately for determination by a court, on an application for mandamus against the Minister under s 75(v) of the Constitution or equivalent statutory jurisdiction, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act.

21    The Minister submitted that the test for determining whether an inferred “reasonable time” limit for making an administrative decision has been exceeded, based on long-standing authority in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; (1981) 35 ALR 485 at 492, is:

… 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 in consequence of neglect, oversight or perversity.

22    This passage from Thornton has been referred to with approval by:

(1)    Murphy J sitting as a single judge of the High Court in Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 at 36-7 (also reported as Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578);

(2)    the Privy Council in Wang v Commissioner of Inland Revenue [1995] 1 All ER 367 at 374; [1994] 1 WLR 1286 at 1293; and

(3)    the Full Court in Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation [2001] FCA 138; (2001) 106 FCR 203 at 208 [21] (citing a quote from Wang).

23    The passage from Thornton is an authoritative statement of the appropriate test to be applied in deciding whether or not a delay by an administrative decision-maker is reasonable for the purposes of a statute that does not provide a specific indication of when a decision is required to be made. All parties in the appeal were agreed that the Thornton test was appropriate to apply here.

Ground 2 – Was the appellants’ detention unlawful from October 2014?

24    The appellants’ case is that the failure of the Minister’s delegate to determine their visa applications “as soon as reasonably practicable”, which they claim was the expiry of the then applicable statutory 90-day time limit on 6 October 2014 for the older brother and on 14 October 2014 for the younger brother, rendered their detention unlawful from those points onwards. Reliance was placed on the reasoning in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219, discussed below.

25    The Minister submitted that the remedy for any failure by him to determine a visa application within a reasonable time would be a writ of mandamus to compel him to determine the application, relying on Plaintiff S297/2013 at 189-190 [37]. The Minister contended that the appellants’ argument was not legally sound, even if the time taken was unreasonable, such that the issue of unlawful detention never arises.

26    Section 189 of the Migration Act required that the appellants be detained upon their arrival at Christmas Island. Section 196 fixed the period for which they were required to be detained as follows:

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

…

(6)    This section has effect despite any other law.

27    None of the events specified in s 196(1) had occurred prior to 16 December 2015, being the date upon which the appellants were granted their visas, and therefore the date upon which s 196(1)(c) brought their lawful detention to an end, if it had not ended sooner on the appellants’ case. On its face, s 196(1), by the use of the word “must”, required the continued detention of both of the appellants until they were granted visas on 16 December 2015 (or until one of the other events listed in s 196(1) took place). The plain words of s 196(1) are emphasised by the terms of s 196(3) and (6).

28    Section 198(2) and (5A) of the Migration Act relevantly provided as follows:

198    Removal from Australia of unlawful non-citizens

…

Removal of unlawful non-citizens in other circumstances

(2)    An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

(b)    who has not subsequently been immigration cleared; and

(c)    who either:

(i)    has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii)    has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

…

(5A)    Despite subsection (5), an officer must not remove an unlawful non-citizen if:

(a)    the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

(b)    either:

(i)    the grant of the visa has not been refused; or

(ii)    the application has not been finally determined.

29    In Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, at 33, Brennan, Deane and Dawson JJ held that a provision of the Migration Act which required a designated class of persons to be held in detention, and a related provision, would be valid:

… if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.

Mason CJ agreed on this point, making this a majority determination. However, Lim was not concerned with the period of detention that was authorised.

30    In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, the majority at 581 [33]-[35] and 638-640 [225]-[233] specifically rejected the contention that where detention was for the purpose of removal, in order to be constitutionally valid s 196(1) was to be construed as implicitly subject to a requirement that the purpose of removal be capable of fulfilment within a reasonably practicable time. That conclusion is binding on this Court.

31    The majority in Al-Kateb further held that detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if removal was required by s 198, but not effected. That is, detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if each of the criteria in s 198 was satisfied and removal was reasonably practicable. If a person continued to be detained after this, it would inevitably follow that the detention was for some purpose other than removal as authorised and required by s 198(2).

32    In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322, Al-Kateb and Lim were considered by Crennan, Bell and Gageler JJ at 369-371 [137]-[143], with French CJ at 344 [32] agreeing with their Honours’ answers to the questions in the special case. The ratio from Lim quoted above was held by Crennan, Bell and Gageler JJ at 370 [141] to be unaffected by Al-Kateb, and to mean that the period of detention authorised is limited to the time reasonably capable of being seen as necessary for the completion of administrative processes directed to the limited purposes identified in the statute authorising detention. However, Plaintiff M76 was a case in which resolving any residual differences between Al-Kateb and Lim did not arise because the Al-Kateb point had not been reached in that case. That point involved an impasse whereby removal could not be effected and nothing more could be done administratively at that time, but a future resolution of the impasse could not be excluded as a possibility. Al-Kateb therefore remains good law, and allows for the possibility of prolonged detention due to such an impasse, indicating that duration of detention alone, and the lack of any immediate prospect of it ending, is not enough to make that detention unlawful. That is of significance in a case such as the present appeals in which the complaint is not that nothing more could have been done, but rather that it was not done quickly enough.

33    The passages from Plaintiff S4 relied upon by the appellants, and detailed below, to build upon Lim and develop a case of unlawful detention by the asserted undue effluxion of time in making a visa decision, require close and careful consideration as to text and as to context. Importantly, Al-Kateb was not discussed in Plaintiff S4, nor was any doubt cast on its correctness. Al-Kateb was not substantially addressed by counsel for the appellants.

34    In Plaintiff S4, the detainee was an unauthorised maritime arrival (at the time of his arrival an “offshore entry person”) in immigration detention. Section 46A(1) of the Migration Act prevented him from making a valid application for any visa, including a protection visa, without express exemption by the Minister. He had met each of the criteria in s 198(2), and the obligation to remove him from Australia had therefore been triggered. Thus, absent an intervening event, s 198(2) required him to be removed “as soon as reasonably practicable”.

35    The removal obligation having been triggered, the Minister in Plaintiff S4 had before him a submission as to whether to exercise the power under s 46A(2) to lift the bar on making a valid visa application. The effect of the High Court’s decision was that because the removal obligation had been enlivened under s 198(2), it applied to all other pending steps. To find otherwise would be inconsistent with the dominant statutory obligation to remove “as soon as reasonably practicable” in s 198(2) and would also be inconsistent with the confined statutory authorisation for detention pending such removal. This context is essential to understand the passages in Plaintiff S4 at 232 [28]-[29] and at 233-4 [35] which were relied upon by the appellants.

36    Those passages might, on one view, be seen as imposing an obligation on the Minister to make a decision on valid protection visa applications “as soon as reasonably practicable”, and to render detention beyond that time as unauthorised by the Migration Act. But attention must also be given to what was said in Plaintiff S4 at 232-234 [28]-[35], as well as the different factual circumstances.

37    In particular, as noted above, the decision as to whether or not to lift the bar under s 46A(2) arose in the context of an obligation to remove “as soon as reasonably practicable” already having been triggered. The statutory limit in s 198(2) on how long that could take, and the consequences of not complying with that limit, applied to the decision under s 46A(2) because of that context and the extant dominant obligation.

38    The duration of the detention in Plaintiff S4 was bounded by the requirement in s 198(2) to effect the detainee’s removal “as soon as reasonably practicable” if nothing else happened (such as the exercise of the power in s 46A(2)). It was in that context at 233-234 [35], that s 198(2) was regarded as applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 [70]. And it was only in that context that detention beyond the s 198(2)-sourced requirement to make the decision under s 46A(2) “as soon as reasonably practicable” could become unlawful.

39    Here, unlike in Plaintiff S4, the power under s 46A had already been exercised. Both appellants had been able to make, and had made, valid protection visa applications. No complaint was made about the time taken to make the s 46A(2) decisions. The obligation under s 198(2) was never triggered. It follows that there was no occasion for the terms of s 198(2) to have any effect on s 196(1), let alone dominant effect. The reasoning in Plaintiff S4 does not assist in this case, and does not overcome the reasoning of the majority in Al-Kateb.

40    It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). None of the authorities relied upon by the appellants compels a different conclusion. Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.

41    Nor does any question of inconsistency with Chapter III of the Constitution arise. Detention while a visa application is being considered does not deprive that detention of its statutory purpose because a reasonable time to make a decision about a visa in furtherance of that purpose has been exceeded.

42    Such reasoning as submitted by the appellants also inverts principle. The regime for immigration detention is valid for the purposes of making a visa decision precisely because it imposes an obligation on the Minister to make that decision within whatever time limit applies; detention only remains valid so long as such a purpose under the Migration Act continues to exist. In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.

43    Now that the appellants have been granted protection visas and released from immigration detention, there is no scope for the issue of the only available remedies for any undue delay that may have taken place, namely mandamus and habeas corpus. It follows that this ground of appeal must fail.

Ground 1 – whether the appellants’ visa applications were determined within a reasonable time

44    Strictly speaking it is not necessary to determine this ground. That is because, on the reasoning and conclusions reached above in relation to ground 2, even if the time taken to make the decisions on the appellants’ visa applications exceeded the implied statutory time limit, the detention was not unlawful. It is desirable nonetheless to express an opinion on this ground, against the possibility that our reasoning on ground 2 is later found to be incorrect: see, by analogy, Prince Alfred College Incorporated v ADC [2016] HCA 37 at [9].

45    The history of dealings with the appellants by the Minister’s Department and other federal government agencies has been complicated by allegations made against the appellants of serious criminal conduct, difficulties and delays in investigating those allegations, a High Court decision invalidating one of the protection visa criteria provisions, and legislative and regulatory changes (including in response to that High Court decision).

46    The Minister submits that these factors adequately explain the delay in making the visa decisions.

47    The appellants contend that the time taken to determine their visa applications became unreasonable once the prior statutory time limit for each of them expired in October 2014. Our reasoning in relation to the repeal of s 65A of the Migration Act above means that no such fixed time limit can apply. The extent and expiry of the reasonable time allowed is a matter for assessment and evaluation taking into account all the facts and circumstances, rather than fixing upon a date in a calendar derived by reference to the time when the decision-making period commenced and a statutory time limit that does not apply, and has not applied at law for any part of that period since 16 December 2014.

48    The relevant period to be examined is from the time the decision was remitted for reconsideration by the Tribunal in each case in July 2014, until the temporary protection visas were granted in December 2015. The question for determination is whether at any point in that 17 month period the time taken was unreasonable in all the circumstances, applying the test in Thornton and noting that that test effectively casts an evidentiary burden on the Minister to explain why the delay was not unreasonable in the relevant sense.

49    The appellants gave the following particulars (some of them combined in these reasons) for asserting unlawful detention by reason of excessive delay:

(1)    Deferral of Public Interest Criterion (PIC 4001) health and character checks while awaiting ASIO clearance;

(2)    Delay by ASIO from the first Tribunal remittals in April 2013 to clearance being given in July 2015;

(3)    Allegations of people smuggling, murder, abduction and, in particular, rape;

(4)    Article 1F of the Refugees Convention and s 36(1C) of the Migration Act;

(5)    Withdrawal of Consent, s 336F of the Migration Act and legal advice;

(6)    Section 65A of the Migration Act prior to its repeal;

(7)    Legislative changes;

(8)    Timing, provenance, quality and credibility of the murder allegation against the appellants; and

(9)    Shared issues of delay and Departmental post investigations.

50    Those particulars are addressed in turn below. For each it is necessary to outline what transpired (drawn from the chronologies filed by the parties) and also to refer to legislative material and some limited additional parts of the evidence before the primary judge. In doing so, the Court has not considered it necessary or appropriate to accede to the invitation by counsel for the appellants for the Court to consider for itself all the voluminous material in the appeal books and, in so doing, to go beyond the material before the primary judge that was specifically referred to in oral or written submissions, including by the Minister. It would not be reasonable to expect a trial judge to engage in such a speculative, unstructured and open-ended process, and even less so an appeal court. It would also not be procedurally fair to the respondents. There was a very large volume of detailed information in the various appeal books to which the Court was not specifically directed.

Chronology of key events

51    The following chronology of events (which is based on the parties’ respective chronologies) is not detailed or exhaustive. It identifies various key events.

52    As noted above, both appellants were born in Sri Lanka. They travelled by boat to Australia and arrived at Christmas Island and were designated as “Irregular Maritime Arrivals”. Upon arrival, each of the appellants was taken into immigration detention as required by s 189(3) of the Migration Act.

53    At the time of their arrivals, s 46A of the Migration Act prevented either of the appellants from making valid visa applications. Accordingly, at that time there was no visa application for either of them, and necessarily no obligation to consider a valid application under s 47 of the Migration Act.

54    On 29 February 2012, in the case of the younger brother, and, on 3 May 2012, in the case of the older brother, the appellants were screened into what is known as the protection assessment process.

55    In the period between March 2012 and May 2012, the Minister’s Department received a number of allegations against the appellants of their involvement in people smuggling and that they had murdered a man in Sri Lanka. Those allegations were referred by the Minister’s Department to the Australian Federal Police (AFP) for investigation. A later allegation of statutory rape against the younger brother emerged from what he told the delegate about a sexual relationship he had commenced with a 14 year old girl when he was 17. This was apparently raised as part of his claims that he feared the girl’s family.

56    There were references to the murder allegations in various documents before both the primary judge and this Court. The documents were heavily redacted because of public interest immunity claims that were upheld by the primary judge. It suffices for present purposes to observe the following relevant references to the murder allegations in some of the documents:

(1)    an allegation that the younger brother escaped Sri Lanka to avoid a murder charge;

(2)    a comment to the effect that enquiries had revealed that the allegation that the younger brother had fled Sri Lanka to avoid a murder trial may be true;

(3)    that it became apparent that the younger brother and his father were predominantly responsible for sailing the boat to Australia;

(4)    Sri Lankan offences relating to attempting to pervert the course of justice may have been committed by the appellants’ father in helping the younger brother to flee Sri Lanka to avoid his murder trial;

(5)    concerns about the problems that would arise if it was confirmed that the younger brother was the subject of a murder trial in Sri Lanka because that would preclude him obtaining asylum and also preclude him being returned because of the death penalty there – enquiries were continuing with the Sri Lankan authorities to determine if the younger brother was a defendant;

(6)    the murder allegation was that the appellants had killed a person by putting his head in sand and suffocating him to death; and

(7)    passports and other identification documents had been thrown overboard on the boat.

57    The majority of the material dealing with the murder allegation was redacted. In one 15-page AFP report, more than 75% is blacked out. A 14-page witness statement is entirely blacked out, as are six pages accompanying that statement. The material was of sufficient moment for the AFP to make successful public interest immunity claims, but beyond that it is speculation as to what information was available and the extent to which it was capable of explaining the need for further enquiries and delay.

58    On 21 March 2012, a month after his arrival, the younger brother participated in an initial entry interview with a Departmental officer. The older brother was interviewed approximately seven weeks later on 11 May 2012, being a month after his arrival.

59    On 2 October 2012, the Minister exercised his power under s 46A(2) of the Migration Act to permit each appellant to apply for a protection visa. On the same day both appellants were considered ineligible for a Bridging visa E, which meant that they remained in immigration detention.

60    On 5 October 2012, the High Court handed down its decision in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1. By majority it was held that cl 866.225 of the Migration Regulations 1994 (Cth) was invalid to the extent it prescribed Public Interest Criterion 4002 (PIC 4002) as a criterion for a protection visa. PIC 4002 was a requirement that the visa applicant not be assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). The majority found that PIC 4002 was inconsistent with provisions of the Migration Act relating to decisions to refuse to grant, or to cancel, a protection visa, which in turn relied upon one or more of Arts 1F, 32 or 33(2) of the Refugees Convention. In substance, there was a “stream and source” problem because this aspect of the operation of cl 866.225 was in a material respect contrary to the Migration Act.

61    On 28 May 2014, substantially the same criterion as in PIC 4002 was reintroduced, but by way of a statutory provision in s 36(1B) of the Migration Act, rather than by subordinate legislation. The requirement of not being the subject of an adverse security assessment therefore re-emerged as an issue affecting the determination of the appellants’ visa applications.

62    The dates are not altogether clear or consistent in the materials before the Court, but on or about 8 October 2012 the appellants lodged applications for protection visas.

63    On 20 November 2012, Criminal Justice Stay Certificates against the appellants were cancelled because there was insufficient evidence to support prosecutions for people smuggling offences.

64    On 21 November 2012, the appellants were separately interviewed by officers of the Department in relation to their protection visa applications. The allegations were put to them about their involvement in people smuggling and the murder charge. The younger brother made claims of a relationship which led to him eloping with a girl aged 15 (also referred to as being 14 when the relationship began), which had resulted in a complaint and a court case being brought against him by the girl’s family.

65    In late December 2012, the two protection visa applications were referred to the complex case resolution section of the Department.

66    On 4 January 2013, a delegate of the Minister refused the appellants the grant of a protection visa upon the basis that the delegate was not satisfied that either appellant was a person to whom Australia owed protection obligations under s 36(2) of the Migration Act. The delegate’s reasons for decision included findings that the younger brother was not wanted on a murder charge. The delegate also found that the younger brother was not subject to an ongoing case or threats from a relationship he had with a girl in 2006, and that the older brother was similarly not the subject of any ongoing court case arising from his brother’s relationship with the girl.

67    On 16 January 2013, both appellants applied for a review of the delegate’s decision by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal).

68    On 6 March 2013, a Tribunal hearing took place for both appellants. On 12 April 2013, the Tribunal remitted both matters for reconsideration with a direction that the s 36(2)(a) criterion for the grant of a protection visa was satisfied. The Tribunal was not satisfied that either appellant was wanted for a murder charge, or that the younger brother was wanted for a violent crime.

69    On 15 April 2013, health, character and security checks were initiated for both appellants. On 15 April 2013, the AFP people smuggling intelligence unit reported advice from their Sri Lankan post of there being insufficient detail in the murder allegation against the younger brother to support any further enquiry. On 17 April 2013, both appellants’ matters were referred to ASIO for completion of a PIC 4002 security check. At that time, there was no such specific criterion for the grant of a protection visa, although it remained relevant as a general character issue under s 501 of the Migration Act. Such a specific criterion was not enacted until just over a year later, on 28 May 2014, as discussed below.

70    Between December 2012 and September 2013, a range of inquiries was conducted by Departmental officers to ascertain the status of the AFP investigations in relation to the murder allegations. As an example, on 25 June 2013, an AFP email to the Department which responded to a request for an update on the AFP’s investigations advised that, in relation to the younger brother, the possibility of people smuggling charges had been re-examined, but it had been determined that a prior decision not to investigate should stand because the admissions made by him to the Tribunal did not constitute evidence that could be used in court because they were not made under caution. In relation to the murder allegation, the (redacted) source had not provided details that could be independently corroborated and legal protections prohibited contact between Australian and Sri Lankan authorities. This meant that there was no avenue to corroborate the murder allegation. Departmental emails during this period indicate that various avenues of inquiry were being considered, including searches by the Departmental post in Colombo, Sri Lanka of publicly available information, although it would seem this was not ultimately acted upon for some time.

71    On 9 September 2013, both appellants were separately interviewed by the National Security and Serious Crimes Reporting Team of the Minister’s Department (NSSCRT). On 17 September 2013, the AFP advised the Department that it was unable to make further enquiries in Sri Lanka in relation to the murder allegation in the absence of the appellants providing formal consent to their names being provided to the Sri Lankan authorities for that purpose.

72    On 24 October 2013, both appellants signed consent forms to allow the AFP to conduct an “in-country” investigation of the murder allegation. On 29 October 2013, those consents were withdrawn by an email from the appellants’ solicitor. Legal advice was sought by the NSSCRT in relation to the withdrawal of consent. There was no evidence before the Court as to what happened to that request for legal advice, but it appears to have been overtaken by events.

73    On 14 December 2013, cl 866.222 of the Migration Regulations commenced, as inserted by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth) (the UMA Regulation). Its effect was to create protection visa criteria as follows:

866.222

The applicant:

(a)    held a visa that was in effect on the applicant’s last entry into Australia; and

(b)    is not an unauthorised maritime arrival; and

(c)    was immigration cleared on the applicant’s last entry into Australia.

74    On 4 February 2014, the Minister’s delegate again refused both appellants the grant of a protection visa on the basis of non-compliance with cl 866.222. On 19 February 2014, the younger brother lodged a second application for review by the Tribunal. His older brother did the same on 24 February 2014.

75    On 25 March 2014, the appellants were again referred to ASIO for security checks.

76    On 27 March 2014, the Senate disallowed the UMA Regulation, including cl 866.222. Being an unauthorised maritime arrival therefore ceased to preclude the grant of a protection visa.

77    On 22 April 2014, the appellants’ visa applications were referred to the Minister for consideration of whether to exercise his powers under ss 195A and 197AB of the Migration Act. On 30 May 2014, the Minister declined to consider intervening under those provisions.

78    On 28 May 2014, the Migration Amendment Act 2014 (Cth) inserted 36(1B) into the Migration Act as follows (thereby reinstating the criteria in cl 866.225):

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

79    As a result of this amendment, the absence of an adverse security clearance became one of the criteria relevant to the appellants’ visa applications.

80    On 2 June 2014, the NSSCRT advised that its investigations did not prevent the processes for visa grant consideration in relation to either appellant, although the older brother remained of interest to the NSSCRT.

81    On 10 July 2014, the second Tribunal remitted the older brother’s visa application for reconsideration on the same grounds as the first Tribunal. On 18 July 2014, the second Tribunal remitted the younger brother’s visa application for reconsideration, also on the same grounds as the first Tribunal.

82    On 6 August 2014, the referral to ASIO was updated for both appellants consequent upon the second Tribunal remittals.

83    On 12 August 2014, there was an NSSCRT meeting at which it was reported that advice had been given by the AFP to the effect that the Departmental post in Sri Lanka should exhaust its own inquiries concerning the murder allegation before seeking AFP assistance. Reference was again made to the need for consent before the appellants’ identities could be disclosed and investigations undertaken by the AFP in Sri Lanka.

84    On 16 December 2014, the part of the Legacy Act repealing s 65A and inserting reg 2.08F into the Migration Regulations commenced and thereby permanent protection visa applications were converted into temporary protection visa applications. A challenge by the appellants to the operation of the new reg 2.08F was unsuccessful before the primary judge. An appeal ground on this point was abandoned.

85    On 21 January 2015, the ASIO referral was updated with employment information in relation to the younger brother.

86    On 13 February 2015, the Departmental post in Sri Lanka was requested to make “in country” enquiries in relation to the murder allegation. Between 13 February 2015 and 11 May 2015, further inquiries were made by the Departmental post.

87    On 14 April 2015, the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) commenced, which amended s 91W and inserted s 91WA to insert bogus documents and identity document destruction provisions into the Migration Act.. This became relevant in relation to the appellants’ visa applications because of an allegation of disposal overboard of identification documents.

88    On 18 April 2015, the Legacy Act inserted s 36(1C) into the Migration Act. That provision is as follows (note omitted):

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

89    Section 36(1C), as with s 36(1B) referred to above, made the appellants’ security status, and therefore the presence of a security clearance by ASIO, of relevance to the determination of their visa applications. Rather than being a discretion not to grant, or to cancel, a visa of the kind in s 501 of the Migration Act upon character grounds, this was an express criterion specific to protection visas.

90    On 3 June 2015, both appellants were again separately interviewed by Departmental officers about the murder allegations.

91    On 2 July 2015, a month after the commencement of proceedings in the High Court and before remittal to the Federal Circuit Court, the Department asked ASIO that “due to court/legal matters” the appellants’ cases “be prioritised more highly than other cases on Top 30” (sic). The reference to “Top 30” supports an inference that there was a substantial number of matters requiring ASIO security clearances at that time.

92    On 21 July 2015, ASIO issued a non-prejudicial security assessment for both appellants.

93    On 31 July 2015, the Department assessed the older brother as having complied with s 91W of the Migration Act.

94    On 5 August 2015, both appellants were referred for PIC 4001 health and character checks. The Department wrote to the older brother, requesting him to provide a police clearance certificate from India (being the country through which he had transited).

95    On 6 August 2015, the AFP issued a non-prejudicial national criminal check in respect of the older brother.

96    On 23 August 2015, the solicitor for the older brother wrote to the Department to advise that he (the older brother) had been unable to obtain a police clearance certificate from India.

97    Between 31 July 2015 and 25 August 2015, there was correspondence between the Department and the solicitor for the younger brother concerning the destruction of documents.

98    On 2 September 2015, the Department wrote to the older brother’s solicitors advising that he would need to apply for a waiver of the requirement to obtain an Indian police clearance certificate.

99    On 19 September 2015, the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (Cth) further amended reg 2.08F. A challenge by the appellants to the operation of the new reg 2.08F was unsuccessful before the primary judge. As noted above, an appeal ground on this point was abandoned.

100    On 24 September 2015, the older brother satisfied the health checks.

101    On 7 October 2015, the solicitor for the older brother applied for a waiver of the requirement to obtain an Indian police clearance certificate.

102    It appears that on 28 October 2015, the younger brother satisfied the health checks.

103    On 30 October 2015, the Department requested further details of the older brother’s stay in India; his solicitor responded on 13 November 2015.

104    On 30 November 2015, the Department carried out an identity assessment for the younger brother.

105    On 1 December 2015, the requirement for the older brother to provide a police clearance certificate from India was waived.

106    On 3 December 2015, additional information was identified in respect of the younger brother, resulting in a request to the AFP for a new criminal certificate check.

107    On 8 December 2015, the primary judge heard the appellants’ applications for wrongful imprisonment and mandamus. Those applications were dismissed on 11 December 2015. By this time all health, character and security checks had been completed for the younger brother except for a police check of aliases for criminal activity in Australia.

108    On 16 December 2015, the appellants were granted temporary protection visas to expire on 16 December 2018 and were released from immigration detention.

Particular 1: Deferral of PIC 4001 health and character checks for ASIO clearance

109    The appellants contended that the primary judge erred in finding that it was reasonable for the Department to adopt the practice of waiting for an ASIO security clearance before initiating PIC 4001 health and character checks. That is because, on the appellants’ case, the delays resulting from this practice were unreasonable because of the lack of practical control and oversight by the Department over ASIO’s assessment process and the intent of the Parliament that s 36(1B) not usurp the Minister’s power under the Migration Act to decide visa applications. Reference was made to evidence in the court below to this practice and to the lack of Departmental control over how long it takes for ASIO to give a security clearance, leading to the (former) s 65A 90-day time limit being regularly exceeded. It was contended that this practice of deferral was inconsistent with the decision-making framework of the Migration Act, and in particular the Minister’s obligations under ss 47 and 65 of the Migration Act.

110    The appellants submitted that the deferral of the health and character checks shifted effective decision-making power from the Minister to ASIO with respect to the potentially disentitling condition in s 36(1B), to the same effect as identified by French CJ in relation to PIC 4002 in Plaintiff M47 at 48 [71], and contrary to the terms of that provision in its legislative context. In particular, the appellants submitted that there was no obligation on ASIO to make any assessment or decision, the criterion was negative (that is, the absence of an adverse assessment), by contrast s 501(6)(g) of the Migration Act provides for refusal or cancellation of visas upon an adverse security assessment and the statutory regime for detention is not expressed to be subject to an ASIO security clearance.

111    The factual context within which to assess these submissions is that serious allegations of people smuggling and murder were referred by the Department to ASIO for security checks on 17 April 2013 and again on 25 March 2014. Non-prejudicial assessments were not issued by ASIO until 21 July 2015. It was not until after those assessments were received that, on 5 August 2015, the appellants were referred for PIC 4001 health and character checks.

112    The essence of the appellants’ complaint is that health and character checks should have taken place at an earlier time, even if they might not ultimately have proved to be necessary because of a failure to pass the security check. This complaint must be rejected. In the circumstances of the appellants here, this deferral was not unreasonable. The complaint overlooks the non-static nature of health and character checks which would have to be current at the time of the final visa decision so that that decision was properly informed. Carrying out checks in a way that may require them to be carried out a second time to ensure their currency could divert resources from the assessment of other visa applications. The approach taken by the Department was not unreasonable nor a “neglect, oversight or perversity”.

113    In response to the appellants’ contentions regarding the Department’s lack of oversight of ASIO, the Minister submitted that the evidence before the primary judge was that the Department had no control over how long ASIO took to provide a security clearance, adding that it could only ask that ASIO prioritise matters. However, reliance on ASIO for this specialist function in aid of the decision-making process did not amount to any shifting of the decision-making power. Rather, it potentially provided information which may be relevant to the exercise of power.

114    As the Minister submitted, the appellants’ reliance on s 36(1B) of the Migration Act was misconceived because that provision makes it a criterion for the grant of a protection visa that the visa applicant is not assessed by ASIO to be directly or indirectly a risk to security. Section s 36(1B), in particular, implicitly contemplates that determination of a visa application may have to be deferred until ASIO has completed its assessment. It was not a rational interpretation of the provisions to submit that if the Minister knew that ASIO’s assessment was incomplete, he would nonetheless be required to determine a visa application upon the basis that the negative aspect of the test was not present.

115    In our opinion, the statutory context submissions relied upon by the appellants do not assist. They do not pay proper regard to the practical and legal consequence that, even if it were not possible to compel a security assessment to be carried out at all, let alone within any particular time, once a serious allegation is under consideration, the Minister is entitled to wait and see if there is any substance in it so to trigger the proscription on granting a visa. The length of that wait remains subject to judicial supervision by the avenue of seeking a writ of mandamus against the Minister.

116    It might also be said that part of the value of an ASIO security clearance is that it is independent, not under the control of the Minister or his Department and carried out by a body that might be expected to have some expertise in this area. A reasonable time for the determination of the appellants’ visa applications therefore had to accommodate the time necessary for ASIO to complete a security check.

117    None of the arguments advanced in aid of this particular is made out.

Particular 2: Delay by ASIO from the first referral in April 2013 to clearance being given in July 2015

118    The appellants asserted that the primary judge erred in finding that the delay in carrying out the ASIO checks was justified by the seriousness of the allegations of people smuggling, rape and murder, or because character checks could be informed by the ASIO assessment. It was submitted that the delay was unreasonable because no new information about any of the allegations appeared to have come to light since they were first made in the period between March and May 2012, and there was no evidence before his Honour about ASIO processes upon which he could base his decision. Further, it was argued that allegations of murder and rape do not fall within ASIO’s remit, although para (aa) of the definition of “security”, in s 4 of the ASIO Act, namely “the protection of Australia’s territorial and border integrity from serious threats” might encompass people smuggling.

119    This particular relies upon the lengthy delay that took place pending ASIO’s completion of its security assessment. The Minister submitted that, given that ASIO is a separate body over which the Minister and his Department have no control, there cannot be any unreasonable delay on the part of the Minister in waiting for that separate body’s assessment to be completed. In terms of the power exercised by the Minister, including any delay in the exercise of that power, it is immaterial whether ASIO’s assessment was unreasonably delayed.

120    There was no evidence to suggest that ASIO’s delay was unreasonable. The evidence before the primary judge was that ASIO assessments often took a long time. Given the statutory requirement not to grant a visa if a visa applicant has been assessed by ASIO to be directly or indirectly a risk to security, the very existence of provisions such as ss 36(1B) and 36(1C) of the Migration Act means that it is likely that, at any point in time, ASIO will be faced with many such assessments.

121    It is not clear to this Court why the lack of new or further information about the undoubtedly serious allegations somehow means that they should not be investigated as thoroughly as possible, even if that took longer than is ideal or desirable. Each of the three categories of allegations were among the most serious of offences under Australian law, and it is to be expected that all reasonable steps would be taken to ascertain whether there was any substance to them.

122    In relation to the complaint about ASIO’s remit, two points may be made. First, the initial allegations of murder and people smuggling were in fact referred to the AFP and were sought to be advanced both by the Department and by the AFP in Sri Lanka, albeit without success. The security clearances processes were not, on their face, directed to any criminal investigation per se. Secondly, it is not hard to envisage how involvement in serious criminal activity, if established, could have a bearing on security concerns.

123    None of the arguments advanced in aid of this particular supports a finding of excessive delay, or error on the part of the primary judge.

Particular 3: Allegation of rape

124    The appellants’ case is that on the information before the primary judge it was not open to his Honour to characterise either appellant as ever being accused of rape. It was submitted that neither appellant claimed this and there was nothing to suggest this in their accounts of the younger brother’s “relationship” with the girl and the response of her parents.

125    The information before the delegate and before the Tribunal, and thus before the primary judge, was that the younger brother had a sexual relationship with the girl who was 14 years of age when the relationship began. Sri Lanka, like Australia, is a Commonwealth nation and may be presumed to have laws in relation to the inability of minors, or for that matter, their families, to give lawful consent to sexual relationships. Indeed, during an interview with the older brother on 3 June 2015, reference was made to the age of consent in Sri Lanka being 18 years of age, which is two years older than Australia. At the very least, it was open and appropriate for such an allegation to be investigated, whether it be formally labelled as rape or not. This particular cannot be sustained, let alone be a basis for a finding of excessive delay.

Particular 4: Article 1F of the Refugees Convention and s 36(1C) of the Migration Act

126    The appellants submit that the primary judge erred in holding that allegations of people smuggling, murder and rape were still matters to be considered by the Minister in connection with Art 1F(b) of the Refugees Convention or s 36(1C) of the Migration Act. Whether that contention is correct or not, there is nothing in the primary judge’s reasons which suggests that his Honour considered this to be a matter which justified any delay subsequent to his Honour’s decision. The primary judge did no more than to note that these matters could, subject to any question of procedural fairness, be the subject of further consideration in the future, in relation to the visa decisions that had not at that time been made. As things turned out, that did not occur and this argument and this particular do not assist the appellants.

Particular 5: Withdrawal of consent and s 336F of the Migration Act, and legal advice

127    This particular turns on the consent that was initially given by both appellants to their names being given to the Sri Lankan authorities, and to the withdrawal of that consent a short time later. It is said that the primary judge erred in finding that this withdrawal of consent prevented the Australian authorities from verifying the nature or evidence underlying the alleged charges against them.

128    It is not in doubt that s 336E(1) of the Migration Act generally prohibited the disclosure of the appellants’ identifying information to the Sri Lankan authorities, subject to their consent lifting that prohibition under s 336E(2)(i). It was open to the appellants not to provide that consent, or indeed, as transpired, to withdraw their consent once given. The practical consequences of either not giving consent in the first place, or of withdrawing consent before it could be acted upon, was that the process of investigating the allegations took longer than might otherwise have been the case.

129    That practical reality is not a matter of holding or making the appellants in some way legally responsible for the ordinary and natural consequences of not consenting, as was their right. However, the primary judge was entitled to take that reality into account in assessing the reasonableness of the time it took to investigate the murder allegations made against the appellants, and to refer to the absence of consent as being the reason why additional time was required. This particular does not assist the appellants in establishing excessive delay.

Particular 6: Section 65A of the Migration Act prior to its repeal

130    This particular relies upon applying the time-limit that previously existed in s 65A as the benchmark by which to measure the reasonableness of the delay in making the visa decisions. For the reasons that we have already given, on and from 16 December 2014 the terms of s 65A were irrelevant to the appellants’ cases. This particular does not advance their case.

Particular 7: Legislative changes

131    The appellants submit that the delay from 4 February 2014 to 18 July 2014 was unreasonable because it was caused by the government’s attempt to insert a new cl 866.222 into Sch 2 of the Migration Regulations. That submission depends upon ignoring the requirement of the Minister (and his delegates) to comply with the law as it stands at the time when a decision is made. On 4 February 2014, when the delegate refused the grant of protection visas to the appellants based on cl 866.222, that was no more than applying the law then in force, even though that clause was subsequently disallowed by the Senate, a matter not within the Minister’s control.

132    Likewise, the Tribunal, also not under the control of the Minister, did not remit the applications for reconsideration until July 2014, which was after the disallowance by the Senate. In the meantime, the Minister gave consideration to the exercise of powers under ss 195A and 197AB of the Migration Act. This particular does not assist the appellants in establishing excessive delay.

Particular 8: Timing, provenance, quality and credibility of the allegation of murder made against the appellants

133    The appellants point to the source of the murder allegation as being a sole informant who has since returned to Sri Lanka. It was said that the allegation did not include the identity of the victim beyond his age, any specific information as to time, location or circumstances or any suggested local sources of corroboration. There were no details as to where the trial was taking place or anything else that could be discreetly verified. It was submitted that the reference to “the” brother who lives in Sri Lanka, when there were in fact two such brothers, indicated that the informant was not acquainted with the appellants’ family and related concerns. One of the reports available to the Department when assessing the credibility of the allegation was said to be based on a theory of motivation that was apparently circumstantial and thin. Issue was therefore taken with an internal Departmental submission that the allegations were likely to be credible. Reference was made to the NSSCRT interviews with the appellants during which no further specifics of the allegations were put to them, with a similar point being made about other interviews. Reliance was placed on the findings of the delegate and first Tribunal that neither appellant had been involved in the alleged murder. It was submitted that the AFP showed no interest in pursuing the allegation.

134    An initial observation to be made is that the appellants appeared to be seeking to have the court below, and now this Court, engage in a qualitative assessment of the investigative and other processes of the Department, the AFP and ASIO in order to form a view as to whether a different approach should have been taken to the allegations that were made, including as to their credibility and related matters. This goes beyond merely considering whether, on the available material, the process was unreasonably long. The appellants’ case would draw the Court into an open-ended assessment of the merits of judgment calls and other operational matters. Counsel for the appellants was asked at the hearing to provide an objective framework or benchmark by which this Court might be able to carry out such an assessment process apart from by reference to the test in Thornton. He was unable to do so.

135    This particular invites this Court to engage in what are in truth administrative fact-finding and assessment functions. It may be that some aspect of that may be required in an appropriate case where there is no apparent explanation for why something has taken so long, and that in turn might ground a cause of action. However, this case is far removed from that situation. The material before the primary judge and before this Court indicates that while the delays were undoubtedly regrettable and undesirable, there was not the sort of absence of regard to appropriate considerations that would warrant a more detailed examination than is provided in these reasons. There was nothing to indicate that the Thornton test was established.

136    The Minister pointed out that some of the factual matters relied upon by the appellants in support of this particular were inaccurate or were not supported by the material that was before the primary judge. For example, the Minister pointed out that by an email dated 17 September 2013, the AFP referred to its earlier 22 August 2013 advice that it had “no further interest in” the appellants. However, that advice was in the context that in-country enquiries regarding the allegation of murder could not be discreetly verified by the Departmental post in Colombo, Sri Lanka. The AFP also advised that, should the Department provide written confirmation of the appellants’ consent to their names being disclosed to the Sri Lankan authorities for the purposes of AFP investigations, further checks could be carried out through its liaison officer in Colombo. Those further enquiries were, as a practical matter, precluded by the appellants withdrawing their consent. This sort of factual dispute and the nature of the task in resolving it reinforces the conclusion that it is not productive or appropriate to delve into the balance of the material before the Court to second-guess the administrative decisions that were made, absent some basis upon which to conclude that a relevant vitiating circumstance was present, such as bad faith, or that some aspect of the Thornton test was engaged. At the very least, it was not appropriate for this Court to engage in such a process on its own initiative, unassisted by detailed analysis from the appellants’ lawyers.

137    In any event, the serious nature of the allegations made against the appellants was such that investigation was required. That need was not diminished because the quality of the informer or the information provided may have left something to be desired. Such an investigation would inevitably take time. The reasonably perceived need to investigate such serious allegations cannot reasonably be described as “capricious” or “perverse”. Allegations such as this could not be dismissed out of hand or ignored, even if the information to hand was lacking in detail. In the particular circumstances pertaining to the appellants, it was not unreasonable to await the results of a security assessment by ASIO given that the truth or otherwise of the allegations could not be ascertained.

138    Consideration of this material tends to suggest that a deal of the delay may be attributable to difficulties encountered in advancing the investigation of the serious allegations made against the appellants, and the consequent need to take other precautionary steps, including obtaining an ASIO security assessment. This particular does not assist the appellants.

Particular 9: Shared issues of delay and Departmental post investigations

139    The appellants made a more general complaint about delay pertaining to a combination of issues referred to above, especially the deferral of the health and character checking pending the security assessment, issues to do with the timing, provenance, quality and credibility of the allegations made, and overall delays in investigating the allegations and consequent delays in making the visa decisions.

140    This more general complaint about the time taken to investigate these issues need to be considered in the context of everything that was happening. These were serious allegations and the investigation of them offshore appears to have been complicated and difficult, especially having regard to maintaining confidentiality of the appellants’ identities. An overall reading of the material that was before the primary judge reveals that active steps were being taken throughout the relevant period, albeit not continuously. A reasonable time cannot require continuous activity as though each such matter was the only matter required to be considered by the Department. As the Minister points out, following the second remittals in July 2014 upon which the appellants rely, the Minister was reliant upon action by ASIO, which did not provide non-prejudicial security assessments until 21 July 2015.

141    The Minister also relied upon the AFP to provide criminal history checks, which did not occur until December 2015 for the younger brother. Information concerning the older brother’s stay in India was a subject of correspondence between the Department and the older brother’s solicitor from August to November 2015. Throughout the period, as a practical matter, the AFP was unable to make direct further enquiries in Sri Lanka because the absence of consent made this impossible. While this may have taken longer than is ideal or desirable, in our view the threshold of unreasonableness in the requisite sense is not apparent on the evidence before the primary judge. This general and overarching particular is therefore not made out.

Conclusion as to ground 1

142    As none of the nine particulars has been made out, error on the part of the primary judge has not been established. Ground 1 must therefore fail.

Conclusion

143    As both remaining grounds of appeal have failed, the appeals must be dismissed with costs.

Associate:

Dated:    21 October 2016