FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT DECLARES THAT:
1. There has been unreasonable delay by the respondent in making a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or to refuse to approve the applicant becoming an Australian citizen.
AND THE COURT ORDERS THAT:
2. The decision of the delegate of the Respondent made on 20 July 2016 to refuse to approve the applicant’s application to become an Australian citizen be set aside with effect from the date of the decision.
3. On or before 28 February 2017, or such later date as may be agreed between the parties, the Respondent make a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or refuse to approve the applicant becoming an Australian citizen.
4. The Respondent pay the Applicant’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VID 547 of 2016
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
DATE OF ORDER:
16 December 2016
THE COURT DECLARES THAT:
1. There has been unreasonable delay by the respondent in making a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or to refuse to approve the applicant becoming an Australian citizen.
AND THE COURT ORDERS THAT:
2. The decision of the delegate of the Respondent made on 15 July 2016 to refuse to approve the applicant’s application to become an Australian citizen be set aside with effect from the date of the decision.
3. On or before 28 February 2017, or such later date as may be agreed between the parties, the Respondent make a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or refuse to approve the applicant becoming an Australian citizen.
4. The Respondent pay the Applicant’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 BMF16 (“F”) and BMG16 (“G”) are Afghan men of Hazara ethnicity who for over four years have been Australian permanent residents. By reason of s 22(1) of the Australian Citizenship Act 2007 (Cth) (“Act”), each satisfies the general residence requirement to be eligible to apply for and has applied for Australian citizenship. The respondent (“Minister”) is required by s 24 of the Act to approve or refuse to approve an application for citizenship.
2 Each of F and G instituted a proceeding in this Court. F did so on 25 May 2016. As at that date, some 18 months had passed without the Minister either approving or refusing the application for citizenship made by F on 1 December 2014. G also initiated his proceeding on 25 May 2016. As at that date, some 23 months had passed without the Minister either approving or refusing the application for citizenship made by G.
3 Each of F and G seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) and under s 16(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). In broad terms they each seek orders requiring the Minister to make a decision under s 24(1) of the Act to approve or refuse to approve their applications for citizenship. Relying upon s 7(1) of the ADJR Act, F and G contended that, in respect of the Minister’s failure to make a decision, there has been “unreasonable delay” warranting the relief that each of them seeks.
4 On 20 July 2016, some 8 weeks after F’s proceedings were commenced, a delegate of the Minister decided to refuse his application for citizenship. That decision (“F’s refusal decision”) was made on the basis that the delegate was not satisfied of F’s identity as required by s 24(3) of the Act. On 15 July 2016, some 7 weeks after G’s proceeding was instituted, a delegate of the Minister made a decision (“G’s refusal decision”) refusing G’s citizenship application because first, the delegate was not satisfied of the applicant’s identity as required by s 24(3), and second, the delegate was not satisfied that G was of good character as required by s 24(1A) in combination with s 21(2)(h) of the Act.
5 Shortly after the refusal decisions were made, both F and G amended their applications to seek additional orders that the refusal decisions be set aside. They rely upon s 5 of the ADJR Act to raise a number of challenges including legal unreasonableness and various failures by the delegate to accord procedural fairness. In each case, it is contended that the refusal decision is tainted by jurisdictional error and, at law, is no decision at all. On that basis, F and G contended that the Minister is yet to determine whether to approve or refuse their citizenship applications and therefore they continue to press their claims for orders requiring the Minister to determine those applications.
6 Whilst the Minister accepted that the determination of F and G’s citizenship applications were delayed, the Minister denied that there was unreasonable delay. The Minister contended that the applications have now been determined and that the refusal decisions are valid and effective. Accordingly, the Minister contended that the relief sought should be declined including because the proceedings have no utility and should be dismissed on discretionary grounds.
7 There are common issues raised by each proceeding particularly in relation to whether there was unreasonable delay. The two proceedings were heard concurrently and evidence in one was received as evidence in both.
8 These reasons commence by setting out the terms of relevant statutory provisions which will later be considered. I will then consider:
(i) Whether there has been unreasonable delay in the Minister determining F and G’s citizenship applications;
(ii) Whether F’s refusal decision is invalid and to be regarded as no decision at all;
(iii) Whether G’s refusal decision is invalid and to be regarded as no decision at all;
(iv) Whether the relief sought should be refused on discretionary grounds.
Relevant statutory provisions
9 So far as is relevant, s 24(1) of the Act requires the Minister to either approve or refuse to approve an application made under s 21 of the Act. The Minister must not approve an application unless he is satisfied of the identity of the person (s 24(3)). Moreover, the Minister must not approve an application unless he is satisfied of the person’s eligibility for Australian citizenship (s 24(1A)). An applicant will only be eligible for Australian citizenship if the Minister is satisfied that the person is of good character (s 21(2)(h)).
10 Section 24 of the Act provides as follows:
24 Minister’s decision
(1) If a person makes an application under section 21, the Minister
must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
11 General eligibility for Australian citizenship is relevantly set out in section 21(2) of the Act. It provides as follows:
21 Application and eligibility for citizenship
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
12 Section 7(1) of the ADJR Act provides for a person aggrieved by a failure to make a decision to apply to the Court for an order of review in respect of such a failure, on the ground that there has been unreasonable delay in making the decision. In relation to such a failure, s 16(3) of the ADJR Act empowers the Court to make orders including an order directing that the decision be made.
13 Section 5 of the ADJR Act relevantly provides that a person aggrieved by a decision may apply to the Court for an order of review in respect of the decision on a range of specified grounds. Section 16(1) empowers the Court, on an application for an order of review in respect of a decision, to make various orders including an order quashing or setting aside the decision.
14 There is no issue that the ADJR Act applies in relation to each of the refusal decisions and also to the asserted failure by the Minister to make a decision in relation to each of F and G’s citizenship applications.
15 Section 7(1) of the ADJR Act provides:
7 Applications in respect of failures to make decisions
(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
16 Section 5 of the ADJR Act relevantly provides:
Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
17 Relevantly, s 16 provides:
16 Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
18 In order to consider the Minister’s contention that relief should be refused on discretionary grounds it is necessary to refer to s 10 of the ADJR Act. Relevantly s 10(2)(b)(ii) provides:
(2) Notwithstanding subsection (1):
(b) the Federal Court or the Federal Circuit Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
19 Although the Amended Applications of both F and G refer to s 39B of the Judiciary Act, it is not necessary that I set out that provision. No particular reliance on that provision was pressed in the submissions made. Given the uncontested applicability of the ADJR Act to the refusal decisions and to the asserted failure to make decisions, it was not necessary for F and G to support their claims for relief by reference to s 39B of the Judiciary Act and unnecessary for me to consider those claims.
has there been unreasonable delay?
20 As Murphy J observed in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 (at 578), where a statutory obligation to perform a public duty exists, without a time limit “any duty would be illusory”. For that reason, where a time limit is not specified, a “reasonable time” will be implied. The same approach was taken by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574. These authorities have been relied upon in support of the proposition that in the absence of specified time limits decisions required by statute are to be made within a reasonable time: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at  (Gageler J); Repatriation Commission v Morris (1997) 79 FCR 455 at 461 (Beaumont J); NAES v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 2 at  (Beaumont J); and see generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014) at 300 [6.51].
21 That common law principle is reflected in s 7(1) of the ADJR Act, the terms of which are set out above. I am satisfied that s 7(1) is enlivened in these proceedings. First, the Minister has a duty to make a decision under s 24(1) of the Act, that being a decision to which the ADJR Act applies. That is uncontentious. Second (and also not in contention), there is no law that prescribes a period within which the Minister is required to make that decision; and, third, “the [Minister] has failed to make that decision”. The third requirement is contentious but, for the reasons I later address, I hold that each of the refusal decisions are tainted by jurisdictional error and that, lacking an legal foundation, each decision is properly regarded, in law, as no decision at all.
22 I turn then to consider the meaning of “unreasonable delay” in s 7(1) of the ADJR Act. I do so by reference to authorities which have considered that provision, but also by reference to other cases, including where the common law principle which s 7(1) embodies has been considered. I think that two matters should be borne in mind as guiding principles. The first is what Dixon J said in Koon Wing Lau at 574 that “[w]hat is a reasonable time will depend upon all the facts …” or, in other words, a delay will be unreasonable where it is unreasonable in all of the circumstances: Thornton v Repatriation Commission (1981) 35 ALR 485 at 489–490 (Fisher J); Oliveira v The Attorney General (Antigua and Barbuda)  UKPC 24 at  (Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes and Sir Bernard Rix).
23 Second, an important consideration in determining whether “there has been unreasonable delay in making the decision” is the scheme of the legislation within which the relevant decision making power is found. The word “unreasonable”, is a broadly-expressed standard and particularly when faced with the interpretation of a broadly-expressed standard, the task of statutory construction must give effect to the evident purpose of the legislation and be consistent with its terms: AB v Western Australia (2011) 244 CLR 390 at – (French CJ, Gummow, Hayne, Kiefel and Bell JJ). As Gummow J said in Al-Kateb v Godwin (2004) 219 CLR 562 at  (in a passage adopted by Middleton and Wigney JJ in Sneddon v Minister for Justice (2014) 230 FCR 82 at ), in relation to the word “reasonably” in the command that a duty be performed “as soon as reasonably practicable”:
The qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.
24 To the same effect, in Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203 at , Ryan, Drummond and Hely JJ observed, in relation to a statutory requirement that a grant of an interest in land be made “within a reasonable time” of an interest in land being acquired:
We accept the test imported by the phrase “within a reasonable time” is an objective one to be applied in the light of all the circumstances made relevant by the legislative context.
25 Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.
26 To my mind, the question that s 7(1) poses is really this: by reference to the statutory scheme in which the decision-making power is found, has there, in all of the circumstances, been an unreasonable delay in the making of that decision. The provision obviously calls for an objective assessment to be made: Thornton at 490 (where Fisher J applied a reasonable person test).
27 The tenor or underlying rationale for the approach taken in the authorities is consistent with the proposition that a delay which has not been justified or satisfactorily explained is to be regarded as unreasonable: Thornton at 492; Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 476 (Neaves J); Karda v Minister for Immigration and Ethnic Affairs  FCA 1132 (Sackville J); Oliveira at ; Conille v Canada (Minister of Citizenship and Immigration)  2 FCR 33 (Tremblay-Lamer J); Dragan v Canada (Minister for Citizenship and Immigration)  4 FCR 189 at  (Kelen J); Gondara v Canada (Minister of Citizenship and Immigration) 2006 FC 204 at – (Barnes J). Many of those cases suggest that the onus (or at the least the evidentiary onus) of demonstrating that a delay is justified, may fall upon the decision-maker. That approach is expressly taken by the Canadian cases to which I have just referred where, in considering whether mandamus should issue, a delay will be considered unreasonable if:
(i) The delay has been longer than the nature of the process required, prima facie;
(ii) the applicant is not responsible for the delay; and
(iii) the authority responsible for the delay has not provided satisfactory justification.
28 In these proceedings the Minister accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay. The concession was properly made. As I will explain, the delays in question were caused by very lengthy periods of inactivity. The extent of inactivity in the processing of the applications calls for a meaningful explanation to be provided by the Minister as to why that inactivity occurred and why the delay thereby caused ought not be regarded as unreasonable.
29 The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira (at ). In that case, the Privy Council considered that making allowance for “the customary way of doing things in Antigua”, in general and absent special considerations, the “outside limit of reasonable time” for the processing of a citizenship application was 12 months (at ). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at ). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at – (cf Thornton at 493).
30 A few observations should be made about the scheme of the Act. The subject matter of the Act is citizenship. Whilst not expressly stated, there can be no doubt that the Act regards citizenship as a public good and that conferral of it to deserving applicants is to be encouraged. Lengthy delays in the process of conferring citizenship would serve to undermine that underlying objective. On the other hand, conferral of citizenship is not usually attended with great urgency. A delay will not ordinarily cause great detriment to the person affected because, for most things, permanent residency rather than citizenships suffices to provide a person with access to most of the benefits of living in Australia. The other observation I would make is that the scheme of the Act does not, it seems to me, envisage the process of assessing an application to involve great complexity and therefore require procedures or processes which are inherently time consuming. For the purposes of assessing an application for citizenship, the scheme does not require or provide for a hearing or any other formal inquiry. No investigative powers are provided to the Minister, nor is any power conferred upon the Minister to compel the production of documents or call witnesses. Section 46 of the Act provides that the application should be accompanied by the information required either by the application form or by the regulations made under the Act. What seems to be envisaged by the scheme, at least for an ordinary case, is a desktop assessment which, it may be expected, could be conducted in a number of hours rather than requiring days or weeks. That is, however, not to say that the scheme does not contemplate that some delay might be caused by reasonable resourcing constraints, the need for the Minister to seek further information from an applicant or obtain information independently. In a case which is not straightforward, it may be expected that the need to collect information will itself consume time. The Department of Immigration and Border Protection’s (“Department”) own service standard envisages that 80% of citizenship applications will be processed within 80 days of an application being made. Applicants who sit and pass the citizenship test are told that in most cases a decision is made within four weeks.
31 I turn then to the relevant facts, much of which also provide relevant background to the question of the validity of each of the refusal decisions.
32 F is an Afghan man of Hazara ethnicity and Shi’a Muslim religion. He claims that he was born in Afghanistan in or about the mid-1980s and that in or about the mid-1990s he fled with his family to Pakistan to escape persecution at the hands of the Taliban. In 2010 F arrived to Christmas Island by boat. On Christmas Island F underwent a Refugee Status Assessment (“RSA”) conducted by an officer of the Department. By an RSA decision record dated 29 November 2010 F was found to be someone to whom Australia owes protection obligations. The RSA decision record identified “[i]dentity concerns” in respect of F including that he had arrived to Australia without identity documents. The RSA officer ultimately found, however, that, “for the purposes of [the RSA]”, F was who he had claimed to be. On 1 December 2010 F was granted a Protection (subclass 866) visa and permanent residence in Australia.
33 On 1 December 2014, precisely four years after the grant of his Protection visa, F made an application to the Department for Australian citizenship.
34 For reasons unnecessary to explain, his application was resubmitted on 17 December 2014. On resubmitting his application, F included a note explaining that he did not have a birth certificate and provided a statutory declaration in which he declared that he was born in a small village in Afghanistan and that no one in that village had birth certificates. In response to the requirement on the application form that he provide three documents “which collectively contain your photograph, signature, current address, date of birth, birth name and gender”, F provided certified copies of his Australian Titre De Voyage, his Victorian driver’s license, his Medicare card and a bank statement. Those documents were annexed to F’s statutory declaration. The application form did not require that proof of identity be provided through records issued in the applicant’s country of origin and no such records were provided by F when he made his application.
35 On about 27 January 2015, the Department wrote to F advising that an appointment and an Australian citizenship test had been scheduled for 3 March 2015. The letter advised F to bring with him the originals of all of the identity documents that he submitted with his application. The Department wrote again on or about 30 January 2015 changing the date of the appointment and test to 16 February 2015. F attended a citizenship appointment and test in Melbourne on 16 February 2016. He failed the citizenship test after two attempts. At that appointment, F provided his statutory declaration regarding his inability to obtain a birth certificate and also originals of his Titre De Voyage, his driver’s licence and his Medicare card. F’s file records that those documents, as well as his statutory declaration, were sighted and uploaded to the file. A note on the file states that F’s identity was verified.
36 F’s citizenship test was re-booked for 27 February 2015. On that day F passed the test. He was then handed a document by an officer of the Department. The document congratulated him on passing the test and advised that in most instances a decision on citizenship applications is made within 4 weeks of the applicant passing the citizenship test.
37 F contacted the Department on 15 April 2015, 2 September 2015, 14 December 2015 and 24 February 2016. On each occasion he queried the progress or status of his application. On each occasion he was informed that his application was being processed or assessed.
38 On or about 30 March 2016, the Department received a letter from F’s solicitors. The letter complained of an unreasonable delay in the processing of F’s application and requested the Minister to make a decision on that application. The letter foreshadowed that legal proceedings may be commenced. On 5 April 2016, the Department contacted F’s solicitors requesting a “Form 956” stating that form to be necessary to authorise contact between the Department and F’s legal representative. The Department did not otherwise respond to the contents of the letter from F’s solicitors. F’s solicitors responded by letter dated 5 April 2016 in terms not presently relevant.
39 On 25 May 2016, F instituted the present application before the Court.
40 On 14 June 2016, the Department wrote to F in relation to his application. The letter stated that its purpose was to give F the opportunity to provide further evidence or information in support of his application. F was told that the Minister’s delegate needed to be satisfied that he met the relevant requirements set out in the Act including that F was of good character and that the delegate was satisfied as to his identity. The correspondence “encouraged” F to obtain original documents from his country of origin that would assist in confirming his identity, citizenship or status prior to arriving in Australia. An information list was provided listing various categories of documents, including documents from F’s country of origin, that it was suggested F may be able to provide in support of his identity. The letter went on to say that if F was unable to provide such documents he should provide a statutory declaration explaining what attempts he had made to obtain documents and state the reasons why he was unable to present them. Under a heading “Timeframe for response” the letter said this:
In order to enable further consideration of your application for conferral of citizenship we request that you forward any additional documents you wish to provide in response to the above information to the Department within 35 days of the date of this letter.
If you do not provide the outstanding documents, or evidence that you have applied for and are still waiting to receive the documents, a decision on your application will be made on the basis of the information already provided to the Department which may lead to the application being refused.
41 On 5 July 2016, F left Australia to visit his ailing mother in Pakistan. It is the subject of some contention whether or not F received the Department’s letter dated 14 June 2016 before he departed from Australia. On the evidence before me I would infer that he did.
42 On 20 July 2016, 36 days from the date of the Department’s letter, the Minister’s delegate made a decision purporting to refuse the citizenship application of F on the basis that the delegate was not satisfied of F’s identity having regard to the material available. I shall extract and discuss the reasons of the delegate for the refusal decision in more detail later when I consider the validity of that decision.
43 G is also an Afghan man of Hazara ethnicity and Shi’a Muslim religion. He claims that he was born in Afghanistan in the late 1970s and that in or about the late 1980s he fled with his family to Iran and lived there for approximately 20 years.
44 G arrived to Australia as an irregular maritime arrival in February 2010. Five days after his arrival to Australia, G completed an interview with an officer of the Department at Christmas Island. At interview G confirmed that he did not have any identity documentation in Australia. On 1 July 2010, G was granted a Protection (subclass 866) visa and permanent residency in Australia.
45 The uncontroversial facts relating to G’s application for citizenship are similar to those pertaining to F, other than for the fact that G made his application about six months earlier. That application was made on 1 July 2014, again precisely four years after G was granted his Protection visa. It had been preceded by two applications in 2010 and 2013 to sponsor G’s wife and children to come to Australia from Iran.
46 The application for citizenship lodged by G was made on a similar pro forma application form as that of F’s application and, in relation to proof of identity, listed the same requirements. In response to those requirements G attached to his application a copy of a Victorian driver’s licence, a bill addressed to him from a water authority and a document stated to be a “travel document” extracts of which suggest it to be a Titre De Voyage issued by Australia.
47 On or about 7 July 2014, the Department wrote to G inviting him to attend a citizenship appointment and test on 31 July 2014. Although G attended on that day he was not registered to sit the test as the “Identity Declaration” in his application had not been completed by a person who was an Australian citizen. An appointment and test was rescheduled for 9 September 2014. The Department’s letter rescheduling the appointment requested that the originals of the identity documents provided with the application be provided at the appointment. On 9 September 2014, G attended at Melbourne and passed his citizenship test. Like F, he was also provided with a document that advised him that in most instances applicants are advised of a decision within four weeks. He provided Australian issued identity documents at the appointment being his Titre de Voyage, his driver’s licence and his Medicare card.
48 A record on G’s file notes that on 9 September 2014, his identity was verified. Records dated 12 September 2014 note that an onshore police check was clear; that offshore penal clearance was not required; that there were no offences declared; that there was no further concerns; and that G was assessed as “of good character”.
49 G’s file also contains a communication written by G’s case officer to another Departmental official dated 1 October 2014. The communication refers to a note which had stated that G’s “household” (which I take to be a reference to the persons with whom G shared accommodation) were subject to an identity review. The communication noted that G had provided two alternative dates of birth to the Department which was referred to as “an identity concern”. It appears that some fingerprint matching was conducted in August and October 2014. Ms Barrio, a witness for the Minister whom I will shortly introduce, accepted that at or about the time of this review, the identity concern raised by the record to which I have referred, was resolved without adverse implications for G’s identity.
50 In about December 2014 and February 2015, G telephoned the Department and asked whether a decision on his application had been made. He was told to wait.
51 On 25 April 2015, G’s migration agent wrote to the Department stating that it had been over six months since G made his application and that he had not heard anything from the Department. The letter stated that G was waiting for his citizenship as that was the only way he could be reunited with his family who were located in Iran. It was said that “this is his option to finally live with his family after all these years of hardship”. The letter asked whether the Department required any further information to be provided. The Department did not respond.
52 On 30 March 2016, G’s solicitors (who also act for F) wrote a letter to the Department in similar terms to the letter sent on behalf of F. The letter submitted that the delay in the processing of G’s application was unreasonable and sought an immediate decision on the application. The correspondence foreshadowed that legal proceedings may be brought. On 5 April 2016, the Department telephoned G’s solicitors advising that it required a “Form 956” and did not otherwise respond. That communication was responded to by a letter dated 5 April 2016.
53 On 25 May 2016, G instituted his proceeding.
54 On 20 June 2016, the Department wrote to G to give him an opportunity to provide further evidence and encouraged G to obtain identity documentation from his country of origin. The letter was relevantly in the same form as that sent to F and outlined at  above. After an invitation from the Department, the details of which I will later address, G attended an interview with a delegate of the Minister and other staff of the Department on 12 July 2016. On 15 July 2016, the Minister’s delegate made a decision refusing G’s citizenship application on the basis that she was not satisfied of G’s identity and also not satisfied that G was of good character. I shall deal with the reasons of the delegate and the refusal decision in more detail later.
55 It will be noted that in F’s case about 15.5 months elapsed between when F successfully completed his citizenship test and when the Department first communicated with F by its letter of 14 June 2016 seeking the provision of further information. In G’s case the period that elapsed between those two events was almost 22 months. It is that inactivity in the processing of the application which is at the core of G and F’s complaints of unreasonable delay.
56 For the Minister, two witnesses gave evidence. Frances Finney is the Assistant Secretary of the Permanent Visa and Citizenship Programme Branch of the Department (“Citizenship branch”). She has held that position since March 2015. She has national responsibility for the program management and delivery of the migration and citizenship programmes and national management of the Department’s Ethnic Liaison Officer Network. Viviana Barrio is employed by the Department as a Director of Citizenship Services in Victoria and Tasmania. She has held that position since June 2015. That position involves the responsibility of providing strategic and day to day leadership to the Citizenship teams in Melbourne and Hobart.
57 The evidence of Ms Finney and Ms Barrio was relied upon by the Minister as providing an explanation for the delay in the processing of the applications of F and G. The fact of delay was not contested, but the Minister contended that the delay was appropriate having regard to all of the circumstances which bore upon the timing of the refusal decisions ultimately made. The circumstances which the Minister contended explained the delay were outlined in the evidence of Ms Finney and Ms Barrio.
58 For the most part, that evidence was pitched at a level of generality that revealed very little about the actual processing of F and G’s applications. Neither Ms Finney nor Ms Barrio had any first hand involvement with those applications before these proceedings were instituted. Case managers directly responsible for the processing of those applications were not called and an explanation as to why was not given. Insofar as the evidence of Ms Finney and Ms Barrio addressed the processing of F and G’s applications prior to about mid-June of 2016, it did so entirely by first or second-hand reference to notes or other records contained on the files held by the Department for each of those applications. Extracts from each of the files (“F’s file” and “G’s file”) were put into evidence by F and G. Generally, I found the source documents on those files helpful and I have preferred those contemporaneous records where any conflict between them and other evidence arose.
59 Ms Barrio’s affidavit gave the following as the explanation for the delay in relation to G’s application:
The Department's letter at VB-8 was not sent earlier than 20 June 2016 due to the applicant's case being identified as one which required thorough analysis of information available to the Department and which required further assessment by specially trained officers. The case was allocated for assessment when resources and staff became available.
60 An explanation in essentially the same terms was also given by Ms Barrio in relation to F’s application.
61 The Minister’s outline of submissions in relation to F (adopted mutatis mutandis in relation to G) sought to explain the delay on essentially the same basis (but with additional particulars):
35. The evidence before the Court provides an explanation for the delay in making a decision and makes clear why, in all the circumstances, that delay was not unreasonable. That evidence shows that:
35.1. [not pressed];
35.2. a portion of those applications [the totality of applications for citizenship] is identified as requiring "thorough analysis" or "further assessment";
35.3. [Each of F and G’s] application was one of those applications identified as requiring "thorough analysis" or "further assessment";
35.4. over the last two years, there were 13,900 applications identified as requiring "thorough analysis" or "further assessment" and:
35.4.1. of those applications, only 3,669 applications have been finalised; and
35.4.2. of the remaining 10,231 unfinalised applications, as at 10 July 2016:
18.104.22.168. 2,545 applications had been on foot for between 12 and 18 months; and
22.214.171.124. 478 applications had been on foot for more than 18 months;
35.5. of the 193 officers in the Department working on citizenship applications, only 12 of them were "specially trained" to provide "further assessment"; and
35.6. since June 2014, there have been considerable changes to the way in which the Department has administered the citizenship programme and:
35.6.1. those changes were introduced due to increased concerns about, among other things, verification of identity in the processing of citizenship applications;
35.6.2. the changes related to both policy and process of the Department; and
35.6.3. the development and implementation of those changes have caused additional delays to the processing of citizenship applications, particularly where identity is in issue.
62 There is a record in each of F and G’s files which helps to explain the inactivity on those files. On G’s file, a note made by the case officer on 11 March 2015 records that G arrived in Australia as an “IMA” (illegal maritime arrival); that an “identity toolkit” was completed; and that the “application has been put forward for further integrity checks”. That note is then immediately followed by a record made on 8 April 2015 as follows:
Filed Undocumented arrival drawer
63 On F’s file a note in the precise terms just quoted was made on 31 March 2015. Unlike G’s file, no earlier reference to a need for integrity checks appears.
64 Ms Barrio was not employed in the Citizenship branch at the time those entries were made and only joined some three months or so later. In cross-examination, she relied on those entries as confirmatory of her understanding of what had occurred in the Victorian section of the Citizenship branch which she described as follows:
Again. I wasn’t there at that time, but my understanding is that in March – February/March of 2015 we looked at cases of people who had arrived without a visa or had no documents on arrival. We looked at the cases and filtered the ones where we needed to do much more work. The effort involved in assessing one of those cases was much higher than the effort in cases where there are documents.
And later in her evidence, again having been prompted by the file entry which I have quoted at  above, Ms Barrio said this:
… [a]nd as I said before in relation to this process, when I started in the section, I was advised that around March or April there had been a review of all of the cases that we had and we had left aside the ones where there were no documents – where people had arrived undocumented where people had arrived as – you know, on boats as irregular or illegal maritime arrivals, and where there was no connection between the documents presented in the application and their identity at the time of birth.
65 There is no evidence before me that demonstrates that any attempt was made by staff of the Citizenship branch to verify whether F and G were in fact “undocumented arrivals”. Nevertheless, I accept that they were so characterised and, that in a process undertaken in the Victorian section of the Citizenship branch in March to April of 2015, together with other outstanding applications for citizenship where the applicant was also so characterised, the applications of F and G were selected for closer scrutiny because the nature of their arrival in Australia was regarded as raising concerns about their claimed identity. For that reason, as the note on each of F and G’s file suggests, the applications were “filed” in the “Undocumented arrivals drawer” on 31 March 2015 in relation to F, and on 8 April 2015 in relation to G. Whether that meant that the files of F and G were physically relocated or whether the “Undocumented arrivals drawer” was merely a symbolic form of categorisation was not the subject of any evidence.
66 Ms Barrio’s evidence was not entirely satisfactory including because she became an advocate who sought to defend her unit’s record. The general tenor of her understanding was that in March to April of 2015 cases such as F and G were categorised (to use her words, which I will hereafter adopt) as “complex cases” and taken out of the ordinary processing path for citizenship applications. In Ms Barrio’s words they were “left aside”. What was the ordinary path for citizenship applications was not explained, but it might be expected that applications would ordinarily be processed in order of application or, in other words, in date order. Ms Finney deposed that applications “should be processed in date order normally” but cautioned that State offices of the Citizenship branch had their own arrangement which had not been necessarily consistent before a restructuring that took place in the course of 2015, to which I will later refer.
67 Ms Barrio did not explain whether there was an ordinary cases queue and how it was managed. The import of her evidence was that it could be expected that a “complex case” would take much longer to be finalised than an ordinary case.
68 With one possible exception concerning the possibility of electronic searches of no real significance, Ms Barrio accepted that between 31 March 2015, when F’s application was categorised as “complex”, and 14 June 2016, when the letter was sent requesting further identity information of F; and from 8 April 2015 to 20 June 2016 (relating to the same events for G), no assessment of any kind was conducted in relation to F and G’s applications. In particular, no request for further information was made of F or G and no attempt was made to obtain and analyse information already in the Department’s possession in relation to F or G—for instance, in files dealing with their applications for protection visas or in G’s applications for a visa for his wife and children.
69 I find that the Department took no steps to progress F’s or G’s applications for some 14.5 months from the time at which each of those applications was categorised as a “complex case”. I also hold that for a period of about 4 months in the case of G, in the time between when finger print checks were concluded and when his application was categorised as “complex”, nothing was done by the Department to assess that application.
70 The letter seeking further information sent on 14 June 2006 to F, and on 20 June 2016 to G, were general in nature, not drafted to address any identified specific deficiency in the information held by the Department and, as Ms Barrio accepted, would not have taken long to prepare. She also accepted, and I find, that it was only after those letters were sent and in late June 2016, that officers of the Citizenship branch made any effort to retrieve Departmental files not held by the Citizenship branch relating to F and G.
71 Although not based on any knowledge (direct or otherwise) specific to F or G’s applications, Ms Barrio sought to explain why it was that no prior step (and in particular the sending of a request for further information) had been taken to progress those applications. She did that by reference to the method (what she called the “workflow”) by which officers in her team worked. She said that work commenced on applications “when the cases were allocated”. Decisions were made as to when a case is ready to be allocated to an officer and if allocated “we start working on the case more thoroughly, and then we go – you know, we start the case and we finish it”.
72 With direct knowledge, Ms Barrio explained how it was that F and G’s cases were allocated. She said:
The cases were allocated after we were advised that the cases were before the Federal Court. The – I remember there was an email saying the cases are going to Federal Court, trying to force the department to make a decision, so I guess that as the director of the area, I saw that and I thought, well, obviously this case is a priority.
Yes. And - - -? ---There are – I mean, we’ve got a plan on how to manage a significant cohort of applications, but sometimes we take some, you know, which are not in the order of priority because they become priority because of other reasons.
Yes. Well - - -?---It’s not very often that we’ve got Federal Court cases.
73 Whilst nowhere mentioned in her evidence in chief, that evidence given in cross-examination, identified the existence of “a plan on how to manage” what Ms Barrio must be taken to have meant the cohort of “complex cases”. And the plan, as identified by that evidence, had an “order of priority”.
74 In sum, I take the import of Ms Barrio’s evidence to be that there was in existence (at all relevant times) in the Citizenship branch section in Victoria, a plan for managing the processing of “complex” applications for citizenship which included an order for priority or, in simple terms, an ordered queue for the assessment and finalisation of those applications. When an application reaches the top of the queue, assessment work then commences on that application.
75 Apart from applicants who complain to the Federal Court being given immediate priority, all that the evidence of Ms Barrio said about the basis or rationale for the priority order in which applications were queued was this:
Why would these not have been prioritised as applications that were, in one case, two years old and in the other case, 18 month old?---Because we had cases which were identified as being more of a priority than those cases so they were priority but after
- - -
Were they even older ones?---I’m not completely sure about the age. There may have been other reasons why others were - - -
So there might be some that are – that leapfrogged the queue, in a way, that they’re not processed in order of date of application?---That’s right.
76 There is statistical data before me, given in answer to interrogatories served upon the Minister, which suggest that the “leap frogging” referred to in Ms Barrio’s evidence has been very extensive so far as the applications of F and G are concerned. The data is current to 10 July 2016. At that time, G’s application was a week or so more than 24 months old and F’s application about 19 months old. The statistical information is not confined to Victoria but deals only with applications that, in her affidavit evidence, Ms Barrio referred to as applications identified as requiring “thorough analysis” or “further assessment”, but which she otherwise referred to as the “complex cases”.
77 The following two tables set out that evidence:
78 Table A demonstrates that between 3,374 and 3,669 “complex cases” were both reached and finalised in a shorter period of time than it took the Department to reach the applications of F and G, and that was so where F and G’s applications were only reached because of extraordinary circumstances (the institution of these proceedings). Furthermore, taken together, Tables A and B demonstrate that F and G’s applications were in the oldest 3 per cent of “complex cases” lodged in the period surveyed.
79 That evidence suggests that something beyond resourcing or the restructuring of the citizenship program (the detail of which I will shortly explain) has caused very significant delay to the processing of F and G’s applications. The vast majority of complex cases in question (about 96 per cent) either did not suffer delay or, at the time of the survey, had yet to experience delay of the magnitude that F and G had experienced by that time. At the least, that evidence provides a foundation for thinking that in terms of being reached for processing, F and G’s applications were passed over by many thousands of other “complex” applications.
80 There was no suggestion, either by the evidence or in the submissions made, that the Australia-wide information given in the Tables is not reflective of the position in Victoria. The Minister accepted that F and G’s applications were in the oldest 5% of undetermined “complex case” applications.
81 The evidence suggests that a substantial delay in the processing of F and G’s applications may have occurred because of the order in which their applications were queued for processing. That their applications were ordered by reference to an unreasonable rationale, and that as a consequence there has been an unreasonable delay in the determination of them, is a real possibility that the evidence does not permit me to exclude. The fact that an applicant who institutes court proceedings is given priority suggests an arbitrariness which does not engender confidence that a reasonable allocation mechanism was being applied by the Citizenship branch in Victoria. Nor does the following evidence, given by Ms Finney about the queue for “complex” or what she called “assurance cases”, engender any confidence that a reasonable approach was taken to the order in which such cases were processed:
… So the queue is one that is managed within our state offices. So as – it’s undertaken manually. So as case officers would see cases that they couldn’t readily resolve and needed further information, they would be placed into this assurance batch. Now, where the particular applicant was in the batch, I don’t – it’s date order; like, you can report on it by date, but there’s no number in the queue kind of thing.
Are they processed in date order?---Well, this is the interesting part of it because they should be processed in date order normally, and because we have had such a large volume of applicants coming through, and because our state officers were operating, if you like, in a more federated sense in the management of their caseloads, what we have been trying to do is make sure that our state officers are operating more consistently, and as I’ve said in my affidavit, reminding them and asking them to make sure that cases that were lodged earlier should be certainly progressed earlier.
Now, the assessment queue that you refer to by reference to the assurance batching, that, as you gave evidence before, is a new framework that was implemented in November 2015, is that correct?---The – no, the state officers have always had their own complex case arrangements, and what we have been trying to do is to make them more uniform and consistent so that we can track them; so we can actually build reports around them. That’s what what’s new.
82 The concern expressed in that evidence, that “complex cases” were not being processed in date order as Ms Finney thought they should have been, is also reflected in other evidence given by Ms Finney that in March 2016 it came to her attention that there were older cases (cases of 12 months or older) “that really should be being processed”. As a result, Ms Finney directed that priority be given to older cases.
83 The evidence is that each of F and G’s applications were allocated to a case officer and that a plan existed in the Victorian office of the Citizenship branch for prioritising the processing of “complex cases”. I would presume that given the existence of the plan for processing “complex cases” it would have been possible for the Minister to have called evidence (most helpfully from the case officer) which explained the plan and the progress of F and G’s applications under that plan. The evidence does not tell me the allocative rationale actually utilised by the Citizenship branch in Victoria for “complex cases”. I do not know where in the queue of “complex cases” F and G’s applications were located, nor when those applications would have been reached if these proceedings had not been brought. I do not know the basis upon which some applications were prioritised over others and in particular why F and G’s applications were left unreached whilst a vast number of other more recent applications were able to be both reached and finalised. On the evidence before me, I am not able to exclude the real possibility that for a very substantial period of time, F and G’s applications were simply left aside and forgotten. In essence, the evidence called by the Minister has failed to explain why it was that F and G’s applications sat in the “complex cases” queue without being reached for 14.5 months. Nor has any explanation been provided as to why nothing was done for over 4 months to progress G’s application before his application was placed into the “complex cases” queue.
84 There are two general circumstances relied upon by the Minister to explain the delay. I will address first the changes to the administration of the Citizenship Program which, in most part, Ms Finney’s evidence detailed. I will then turn to resourcing.
85 Ms Finney deposed that concerns were raised during 2014–2015 about the reliability of identity information being assessed to process citizenship applications for certain applicants. As her evidence developed, it became clear that the concern was focused upon refugees who had arrived in Australia without a visa. An internal audit report prepared by the Department in June 2014 stated that it was important to have a detailed understanding of identity issues and risk and found that identity issues may not fully present themselves until a citizenship application is lodged, at which point they must be addressed. In January 2015 the Martin Place Siege Joint Commonwealth-NSW Review recommended that the Department needed to better assess the possible risk posed by individuals at the pre-visa, post-visa and pre-citizenship stages.
86 From about March 2015, the Department took a range of steps to improve assessment of identity including assessment of citizenship applications. In that month, the Department strengthened the integrity of visa and citizenship programs by improving capabilities in areas such as risk assessment. All citizenship managers received a verbal identity and national security briefing by Departmental identity specialists and an external agency. Managers were informed that a greater level of scrutiny would need to be applied to citizenship processing based on a “risk-based approach”. The briefing reinforced the importance of determining an applicant’s identity and known aliases for the purpose of assessing citizenship applications. In order to strengthen identity verification processes, the Department developed a “risk-based quality assurance program” in June 2015. Specially trained Caseload Assurance Officers were introduced into each processing office of the Citizenship branch in mid-June 2015. That occurred as part of a nationally consistent approach to enhancing the integrity of the citizenship program. In addition, a number of staff were diverted from regular processing and trained to support the Caseload Assurance Officers. To further develop identity assessment capability within the citizenship program, a two-day identity essentials course was presented across Australia for all Citizenship officers.
87 The Department recruited a specialist project manager to work with each processing office and relevant areas of the Department to design a new business process for enhancing citizenship decision-making. A risk-based quality assurance check on a sample of citizenship applications which had been approved, but had not yet led to citizenship being conferred, was conducted in September 2015. The Caseload Assurance Officers had oversight over this work and helped to refine the decision-making process for assessing risk. Following the check of sample cases in November 2015, a new “high risk assurance business process” (“assurance process”) was implemented in the Citizenship branch.
88 When the assurance process was introduced, Ms Finney emailed Ms Barrio and other Departmental officers. Her email stated that the assurance process “applied to all new identified applications for Australian Citizenship”. Nothing was said in relation to extant applications. In cross examination, Ms Finney confirmed that the assurance process was directed to new cases. The process required identity assessments to be performed “upfront”. That is, at the outset and prior to the applicant attending an initial interview and taking the citizenship test. Ms Finney confirmed that F and G’s cases were not in that category, they had long since passed their citizenship tests and the identity requirements at that stage.
89 However, as part of a somewhat curious answer to a question about to whom the new assurance process applied, Ms Finney’s response suggested that the new process of identifying and resolving identity concerns was not necessarily new when introduced in early November 2015. She again referred to each State office having had responsibility “for managing their own caseload and identifying those risks within that caseload and then assigning the resourcing and so forth” and said that what the assurance process did, was move the Citizenship branch to “this more nationally-consistent, uniform approach”. For that purpose, a date was picked for the assurance process to commence so that new applications would thereafter go through the new uniform process. That evidence must be read with the evidence set out at  which also suggested that what was new about the assurance process was a uniform and consistent national approach. The extent to which some State offices within the Citizenship branch (and in particular Victoria) were already using the process or something similar to the procedures required by the assurance process, and from when, was not stated by Ms Finney or by any other evidence. It was after giving all of that context that Ms Finney said:
Now, to answer your question about applications lodged prior to that date, the intention was that they would still (a) be processed and (b) that they would have that same level of checking to be undertaken if – if and as required.
90 There are two ways in which the Minister sought to deploy the evidence about the introduction of new assessment processes for “complex cases”. First, and as put by Ms Finney, “[t]he labour-intensive nature and slowness of the assessment process has been a cause of lengthening processing times”.
91 There are two difficulties with the Minister’s reliance upon the new procedures lengthening the processing time of citizenship applications. The new procedures (even if applicable to extant applications) had not been applied to either F or G because, as at mid-June 2016, their applications had not been reached for further assessment. Second, if the effect of the new lengthier processes on other applications brought about the delay in F and G’s applications being reached (a proposition not directly supported by the evidence), the unanswered question remains: Why were other applications prioritised ahead of F and G’s and to what extent did that bring about an unreasonable delay?
92 The second way in which this general circumstance was sought to be relied upon by the Minister, was that delay was caused to the processing of F and G’s applications because it was necessary for the Department to develop new processes before resuming the processing of extant “complex cases”. To counter that proposition, F and G contended that the suspension of processing was itself unreasonable. The contested positions raise difficult considerations in the context of evidence called by the Minister which was often ambiguous.
93 Ms Finney deposed that as a consequence of the developments which I have discussed, applications for citizenship which required further assessment such as F and G’s “were placed into an assessment queue” pending the implementation of the changed arrangements. She then deposed that F and G’s applications “recommenced assessment” in March 2016. In cross-examination, Ms Finney arguably acceded to the suggestion that F and G’s applications were left on hold until shortly before June 2016 awaiting the Department’s development of its new processes. Ms Finney’s evidence suggested that F and G’s applications had been put on hold for 12 and possibly 15 months pending the development and implementation of changes to assessment processes for “complex cases”.
94 Relying upon that evidence, F and G contended that their applications had been put on hold for 12 months or alternatively to November 2015 awaiting the development and implementation of the new processing arrangements. They argued that that in itself was unreasonable and had brought about an unreasonable delay. They contended that for the Department to have taken such a long time to formulate and implement those changes and, at the same time done nothing at all to process their applications, was demonstrative of unreasonable delay.
95 However, much of Ms Finney’s evidence that sought to address what had actually occurred in relation to F and G’s applications was unreliable. The evidence earlier referred to, that the assessment of F and G’s applications “recommenced” in about March 2016, is a good example. Ms Finney had no basis (not even a hearsay basis) for that evidence as cross-examination of her revealed. As she was ultimately forced to concede, she was not in the Victorian office of the Citizenship branch and could not “go to that level of detail”.
96 On the evidence before me I do not accept that F and G’s applications were put on hold pending new processing arrangements for 12 months or possibly longer. I do not accept that Ms Finney knew the extent to which the processing of “complex cases” had been suspended in the Victorian office of the Citizenship branch as a result of the development by the Department of new procedures.
97 As Ms Finney said at various times in her cross-examination, until November 2015 the State offices within the Citizenship branch were managing their process for dealing with “complex cases” according to their own systems. As I have said, the tenor of her evidence was that part of the rationale for the introduction of the assurance process was to make the inconsistent “complex case” arrangements in various State offices more uniform so that they could be tracked, so that reports could be produced, so that the arrangements were transparent and so that “we [the national office] can see what is actually happening”.
98 The person who was in a position to know whether the development of new processes had resulted in a suspension of the processing of “complex cases” in Victoria was Ms Barrio. Her evidence in chief referred to the development of new processes and said no more that this:
The consequences of these changes have been a general delay in processing complex citizenship applications, for example where there is limited or no identity documentation.
99 Ms Barrio did not identify any specific period in which the processing of “complex cases” was suspended in Victoria awaiting the development of new procedures or if there was any suspension at all. The tenor of her evidence is reflected in the explanation she gave for the delay which is set out at  above and which was to the effect that it was the unavailability of staff and resources which precluded F and G’s applications from being allocated for assessment.
100 In cross-examination and in answer to criticism that no work was done on F and G’s applications from the time they were categorised as complex until June 2016, Ms Barrio did say that work had been done in relation to developing procedures. She regarded that work as work that was done on the applications of F and G. Nevertheless, she did not identify the extent to which the developmental work undertaken had hindered the processing of “complex cases” in general or F and G’s applications in particular.
101 In the end, whilst I do accept that the development of new processes was likely to have delayed the processing of F and G’s applications, I do not have a sufficient evidentiary basis upon which to reliably assess the extent of any delay that may have been caused. I note that in the submissions made by the Minister, no contention was made that the assessment of “complex cases” had been suspended in Victoria for any specified period. If any suspension occurred, it seems to me likely that it would have been lifted by mid-June of 2015. As Ms Finney deposed, specially trained Caseload Assurance Officers were introduced into each processing office in mid-June 2015. Their function was “to make decision[s], support other decision-makers and work with specialist areas to progress more complex applications”. As the evidence stands, it is difficult to accept that Caseload Assurance Officers were introduced “to progress” the processing of “complex cases” at a time when progress on “complex cases” had been halted and was to remain suspended for many months thereafter. That all suggests that if there was a suspension of the processing of “complex cases”, it may have lasted about 3 months. The evidence which I consider to be reliable does not permit a broader finding than that. A delay of about 3 months to develop and implement new procedures of the kind that the Department did implement seems justifiable.
102 However, that F and G’s applications may have been reasonably delayed for some 3 months, does not serve to explain the totality of the inactivity in question which, as earlier stated, exceeded 14.5 months from the time that each of F and G’s applications were categorised as “complex cases” to the time their applications were reached for further processing.
103 As to whether a scarcity of resources brought about a delay in the processing of F and G’s applications, the Minister was in a position to provide detailed evidence about resourcing pressures for the processing of “complex cases” and in particular the processing of F and G’s applications in Victoria. Ms Barrio gave no specific evidence about work pressures upon the staff of the Citizenship branch in Victoria. There was evidence before me of the overall numbers of applications for citizenship but that evidence was expressly not relied upon as a basis for explaining any delay to the processing of F and G’s applications. The overall number of “complex cases”, as set out in Table A and B, was in evidence and was relied upon in a comparison with the overall staffing of the citizenship branch across Australia.
104 Whilst the evidence gives me no reason for thinking that the staff of the Citizenship branch were not busily working processing citizenship applications, the evidence is far too general and non-specific to the circumstances attending the applications of F and G, for me to make any sensible evaluation as to whether a scarcity of resources contributed to the delay in the processing of those applications and, if it did, the extent to which any lack of resources explains that delay: cf Oliveira at . There is also the additional question of whether, if a lengthy delay was caused by a lack of adequate resources, that delay should be regarded as reasonable. As the Privy Council observed in Oliveira (at ), “absence of resources is not in general an excuse for maladministration”: and see further Wei at 477 and Dragan at . To my mind, in the context of the scheme of the Act, inactivity in the processing of a citizenship application of more than a few months duration is unlikely to be reasonably explained by reference to a lack of resources.
105 The difficulty with the explanation for the delays given by the Minister, is that the evidence fails to demonstrate that resourcing issues or the change in the administration of the citizenship program made to enhance identity assessment, were significant causes of and thereby substantially explain the Department’s failure to take any significant step to process F and G’s applications for some 14.5 months. Presuming that those two generally applicable circumstances contributed to the delays (and that neither contribution of itself sustains a finding that the delays were unreasonable), the evidence does not permit me to reliably assess the extent to which either was a cause or to exclude other circumstances as bearing significant (if not primary) responsibility for the delays. It is for those reasons, in the context of the onus of the Minister to put evidence before me that sustained a reasonable explanation for the delays, that I have concluded that there has been an unreasonable delay in the processing of each of F’s and G’s applications for citizenship.
106 Whilst unnecessary for reaching that conclusion, the conclusion is reinforced by my impression about the time it should reasonably have taken to process each of F’s and G’s applications. In G’s case, it is very difficult to understand why his application was not processed in the seven month period between when he completed his citizenship test and when his application was categorised as “complex”. A shorter period should have been sufficient. If G is correct that his chance of reunification with his family is dependent upon obtaining citizenship, it is reasonable to expect that his application should have been prioritised and dealt with more quickly. There is no reason apparent to me as to why G’s application had not been dealt with at a time well prior to the Department determining that it should enhance its identity assessment processes.
107 Given the later time at which F passed his citizenship test, it is more understandable why his application might have been delayed by the introduction of the new enhanced identity assessment process. But even so, on the evidence and given my impression as to the outer limit of time reasonably necessary, I find it hard to understand why F’s application was not dealt with within six months or so of F completing the citizenship test.
Was the decision to refuse F’s application valid?
108 As s 20 of the Act states, a person becomes an Australian citizen under subdivision B of Pt 2, Div 2 of the Act (which deals with citizenship by conferral) if the Minister decides under s 24(1) to approve the person becoming an Australian citizen and, where a pledge of commitment to become an Australian citizen is required, that pledge is given. Section 24(1) requires that the Minister make a decision either approving or rejecting an application for citizenship. There are a number of considerations set out in s 24 that the Minister must consider and be satisfied of before approving an application for citizenship. Most relevantly to F’s proceeding, s 24(3) requires that the Minister must not approve an applicant for citizenship becoming an Australian citizen “unless the Minister is satisfied of the identity of the person”. By letter dated 20 July 2016, F was informed by the Department that his application for Australian citizenship had been refused by a decision of that date. The refusal decision was made by a delegate of the Minister holding a position within the Citizenship section of the Department. The letter attached a “Decision Record” which set out the reasons for the refusal decision (“Reasons”).
109 Under a heading “Applicant’s Background”, the Reasons refer to F’s arrival in Australia as an “Irregular Maritime Arrival”. Reference is made to the content of F’s entry interview. It is said that he identified himself by the name given on his application for citizenship together with his date and place of birth. The Reasons note that in both the entry interview and his application for a Protection visa, F claimed that he had “no identity documents”. The Reasons then set out factual statements made by F about himself and his family. As to that, the delegate found that the information given by F at his entry interview and that given for his Protection visa application were consistent. After noting the lodgment of the application for citizenship and its supporting material and that F passed the citizenship test, the reasons then say this:
On 14 June 2016, the Department sent a letter by registered mail to [F] requesting additional identity documents be provided within 35 days from the date of the letter, that is by 19 July 2016. A check of the Australia Post tracking system indicated that the letter was collected from the relevant post office on 16 June 2016. The registered mail tracking number is 51004312888015.
The letter stated that further documents were required from [F] in support of his application, in particular, documents from his country of origin which would assist in confirming his identity, citizenship or status prior to arriving in Australia.
The letter advised [F] that if he was unable to provide the above documents, he was required to provide a written statutory declaration explaining what attempts he made to obtain the documents and state reasons why he would not be able to present them.
[F] was also advised in the letter that if he did not provide the outstanding documents, or evidence that he applied for and was waiting to receive the documents, a decision on his Citizenship application would be made on the basis of the information already provided to the Department, which may lead to the application being refused.
On 27 June 2016, [F] applied for a Resident Return Visa (subclass 155) which was granted on 28 June 2016 and is valid until 28 June 2021.
On 5 July 2016 [F] departed Australia. He is currently offshore.
[F] did not provide the information the Department requested from him in its letter of 14 June 2016 within the 35 day period that expired on 19 July 2016. And [F] has not provided the requested information since 19 July 2016.
There is no information before me to indicate that [F] has provided a response or contacted the Department to request an extension of time to respond.
On 18 July 2016 an email was sent to the Department from email address [F]@icloud.com. However, the only content in the email was the words 'Sent from my iPhone'. On the same day the Department replied to the email advising that no content was received in the email except for the mentioned words and requested for the sender to resend any further information. To date a reply to the Department's email message has not been received. The Department cannot confirm that this is [F]'s email address.
I also note that the Department made attempts to contact [F] by telephone on 6 July 2016 and 16 July 2016, but there was no response.
110 A heading “Consideration of Application” immediately follows this passage. In that section the delegate identified a number of the legislative requirements for approval and set out findings against those legislative requirements. All of the legislative requirements listed, other than two were found to have been satisfied. In relation to the requirement in s 21(2)(h) that the applicant for citizenship must be of good character at the time of decision, the Reasons explains that no assessment was made “[b]ased on the prohibition of approval in relation to [F]’s identity under subsection 24(3)”. In relation to s 24(3) the Reasons state that a prohibition upon approval applies which is explained as follows (emphasis in original):
Subsection 24(3) of the Act states that I must not approve a person becoming an Australian citizen unless I am satisfied of their identity.
Under subsection 24(3) of the Australian Citizenship Act 2007, the delegate must be satisfied of your identity. From a citizenship perspective identity is assessed from the time of an applicant's birth. If the delegate is not satisfied of a person's identity the application cannot be approved.
The Explanatory Memorandum to the Australian Citizenship Bill 2005 states that there may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.
The documents that have been provided to the Department as part of [F]'s citizenship application have all been issued to [F] in his claimed identity since his arrival in Australia.
By the Department's letter of 14 June 2016 [F] was given an opportunity to provide documents from his country of origin which would assist in confirming his identity, citizenship or status prior to arriving in Australia. [F] did not, within the requested 35 day period or indeed since the expiration of that period, provide any such documents or an explanation as to why they could not be provided.
I have considered all available information at the time of the decision and I am not satisfied that sufficient evidence has been provided to satisfy me as to [F]'s identity for the purposes of conferral of Australian citizenship within the terms of the Act. [F] can reapply for citizenship if his situation changes and he is able to provide additional documentation in support of his identity.
I find that I am prohibited from approving [F]'s application under subsection 24(3) of the Act on the basis that I am not satisfied of his identity.
111 The Reasons conclude with a section headed “Delegate’s Decision” in which the content of the last sentence just quoted is essentially repeated.
112 F contended that the refusal decision is affected by jurisdictional error relying on five grounds. Three of those grounds asserted that the decision was legally unreasonable. The ground for review relied upon for the purposes of the order sought under s 16(1) of the ADJR Act was not specified but I presume that F relies upon the unreasonableness ground specified in s 5(2)(g). That the decision was made in breach of the requirements of procedural fairness is also raised as a ground. Again, whilst not specified, I presume that for s 16(1) purposes F relies on the s 5(1)(a) ground of review. Additionally, F contended that the delegate failed to have regard to relevant considerations and I presume reliance is made upon the ground of review in s 5(2)(b) of the ADJR Act.
113 I will address legal unreasonableness first but note that much of that discussion is also relevant to the claimed breach of procedural fairness.
114 F relied on the principles enunciated in Li. Since Li, a number of Full Courts of this Court have considered the content of the requirement that administrative decisions be legally reasonable, which is to say that they must not be legally unreasonable: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. In Eden, Allsop CJ, Griffiths and Wigney JJ summarised in seven points what falls from Li, Singh and Stretton, noting that the seven-point summary does not supplant or derogate from those cases. The seven points are these (citations omitted):
 First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.
 Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
 Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.
 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
 Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
 Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
 Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at ). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
115 F’s contention that the refusal decision was legally unreasonable was variously put but, I think, is best encapsulated as follows. F contends that the refusal decision was based upon the delegate’s conclusion that as at 20 July 2016, F had, first, been afforded an adequate opportunity to provide documents from his country of origin which could assist to confirm his identity and, second, F did not want to either:
(i) provide any such documents; or
(ii) provide an explanation as to why such documents could not be provided; or
(iii) seek further time to do (i) or (ii).
116 F contended that in the circumstances existing and known to the delegate on 20 July 2016, even though (i), (ii) or (iii) had not been done, there was (at the least) substantial uncertainty that F did not want the opportunity to do (i), (ii) or (iii). In that context, in the knowledge that F had appointed a solicitor and in circumstances where it was not necessary for the delegate to have determined F’s application at that time, F contended that it was irrational for the delegate to have proceeded to make the refusal decision without having had further recourse to F or his solicitor to clarify whether or not F wanted the opportunity to do (i), (ii) or (iii). On that basis, F contends that the refusal decision was legally unreasonable.
117 The Minister’s response was also variously put, but I think is encapsulated in essentially two points. First, in this submission put in the Minister’s outline of submissions:
The lack of a response to the request for information was not itself the reason for the refusal decision. Rather, the lack of response meant that the matter fell to be determined on the available information and, on the basis of that information, the delegate was not satisfied as to the applicant's identity. The request for information plainly warned the applicant and his solicitors of this possibility.
118 Second, the Minister submitted that given the circumstances as they existed on 20 July 2016, the delegate’s conclusion that F did not want to provide further documents or do any more was reasonable and did not call for the taking of any further step by the delegate before determining F’s application.
119 The Minister’s first point was not elaborated upon in argument but I take it to have been pressed nevertheless. It was made in response to the contention of F, made in his outline of submissions, that “[t]he sole basis of the refusal decision was [F]’s alleged failure to respond to an invitation to provide further information …”. It may be that by its response, the Minister merely intended to contest the contention that the “sole” basis for the refusal decision was F’s non-response. To that extent I would agree with the Minister. It seems reasonably clear to me from the Reasons, that F’s failure to provide further identity information was not the sole basis for the refusal decision. I accept that a basis relied upon by the delegate for the refusal decision was that the material which F had previously provided with his citizenship application was insufficient to satisfy the delegate of F’s identity.
120 However, if the Minister intended to say that the delegate’s conclusion that F did not seek to respond was not a basis for the refusal decision, I would disagree. Clearly it was. The delegate’s reference to the Department having provided F with an opportunity to provide further identity documents was not merely referred to as background for the purpose of recording the giving of the opportunity. The delegate’s finding that F had provided no further documents, or any explanation as to why such documents could not be provided, despite the opportunity to do so, was recorded as part of the deliberative reasoning of the delegate. The delegate was “… not satisfied that sufficient evidence [had] been provided to satisfy [her] as to [F]’s identity…”. On a fair reading of the Reasons, the delegate’s view that there had been a failure to provide more information despite the opportunity given must be understood as a critical aspect of the delegate’s ultimate conclusion that the delegate could not be satisfied of F’s identity.
121 The circumstances that support F’s allegation of irrationality need to be further outlined. There are, I think three propositions upon which F relies. Each is supported by particular facts which were not really in contest although, to some extent, how those facts should be characterised was.
122 The first of those propositions is this. As a matter of rational expectation, a person in the position of the delegate would have expected that F would take up the opportunity to be further heard by providing additional identity documents or by providing an explanation as to what efforts he had made to obtain them. To my mind, the following facts make that proposition good.
123 F may be taken to have had a strong interest in obtaining approval of his application for citizenship. He made the application for citizenship and had pursued its approval for over 18 months, including by taking the unusual step of engaging solicitors and counsel to institute and prosecute proceedings in a superior court with the object of obtaining court orders to require the Minister to determine forthwith whether approval should be given. F had met every request for identity documentation made of him prior to the request made on 14 June 2016. Given the content of the correspondence of 14 June 2016 and given that F had the benefit of legal representation, as a matter of rational expectation, it was highly likely that F was well aware that a failure by him to respond would prejudice the approval of his application and may lead to its rejection.
124 On the basis of what may rationally have been expected by reference to those circumstances, a reasonable person in the shoes of the delegate would have been surprised to discover that upon the expiry of the 35 day deadline provided for in the letter of 14 June 2016, F had neither taken up the opportunity to be further heard nor sought an extension of time to do so. Whilst it was possible that that failure was the product of F’s will, it would have been surprising if it had been because all other indications about F’s desire to pursue his application and facilitate its approval had been to the contrary.
125 Second, there was a basis for the delegate to have considered that F’s desire to respond, or at least to seek further time to do so, may have been defeated by circumstances known to the delegate. As the decision record states, on 27 June 2016 F applied for a Resident Return Visa which was granted on 28 June 2016. On 5 July 2016 F departed Australia and was still overseas at the time the refusal decision was made. Other information provided to the Department was that F was in Pakistan visiting his very ill mother and was not expected to return prior to 2 October 2016. The Department was aware that, being overseas, F may experience difficulty in communicating with the Department. F’s file records that on 6 July 2016 an officer of the Department attempted to telephone F to obtain his permission for the Department to contact him by email given that he was outside of Australia and also to confirm his expected date of return to Australia. The attempted call failed. F’s mobile telephone rang out. A further attempt by the Department to contact F on 16 July 2016 was also unsuccessful. Furthermore, the prospect that F had in fact experienced difficulty in contacting the Department whilst overseas is supported by the email received by the Department to which the Reasons refer. As the Reasons outline, a message from an email address containing F’s name was received by the Department on 17 July 2016 but its only content was “sent from my iPhone”.
126 The third proposition is that before making the refusal decision, the delegate could readily have made an inquiry with F’s solicitors to clarify whether or not F intended to provide a response to the Department’s request for further information. It is uncontentious that the 35 day period given for F to respond is not set by any statutory requirement and that there was no imperative upon the delegate to make the refusal decision on the 36th day after the request was made. In other words, time was not an impediment to the making of the further inquiry that F contends any reasonable delegate would have made.
127 Had that further inquiry been made, I am satisfied that the delegate would have been informed by F’s solicitors, Russell Kennedy Lawyers, that F intended to respond and sought an extension of time to do so. That finding can be inferred from the fact that F did seek a three week extension to respond which was communicated by email to F’s case officer by Russell Kennedy on 21 July 2016.
128 The facts, including the timing of the email just referred to, are more complicated than I have so far outlined and I will expand upon them shortly. But to sum up, F’s contention is that in the expectation that F would likely want to respond, in the knowledge that because he was overseas F may have difficulty communicating with the Department and preparing a response, and given the ease with which the Department might have confirmed that F in fact desired to respond, it was legally unreasonable for the delegate to have proceeded to make the refusal decision without first inquiring of Russell Kennedy whether a response was intended.
129 Responding to that contention, the Minister denied that any further step by the delegate was rationally required by the circumstances. The submission did not contest the ready availability of information as to F’s intent on the making of an inquiry with Russell Kennedy. In the Minister’s submission, it was reasonable for the delegate to have proceeded to make the refusal decision on the understanding that F had nothing further to say. I accept, as the Minister contended, that F had been asked to respond and that the delegate had a basis for thinking that that request, including the deadline imposed and the possible consequences of not responding, had been communicated to F and was also known to his solicitors. Based on that foundation, the essence of the Minister’s point seems to be that in the absence of receiving a response (or an indication that more time was required to provide a response) either directly from F or through his solicitors, the delegate was well entitled to assume that no response was intended. When a response did come in the email from Russell Kennedy of 21 July 2016, it came too late. A day too late. As F accepted, it was late because Russell Kennedy had miscalculated the 35 day deadline. Although not expressly put in these terms (perhaps for reasons which I will now explain), the import of the Minister’s contention was that in the knowledge that F was legally represented by Russell Kennedy and in the absence of any response including from Russell Kennedy, the delegate was entitled to assume that no response was intended by F.
130 That would be a cogent submission but for the fact that the evidence establishes that the Department refused to recognise Russell Kennedy or Ms Olivia McMillan or Ms Emma Dunlevie, both lawyers and migration agents employed by Russell Kennedy, as F’s representatives in relation to his application for citizenship. At this point, it is convenient that I return to the facts which, as earlier indicated, I will now elaborate upon.
131 As I have earlier outlined, on 30 March 2016, Russell Kennedy wrote to the Department requesting that the Minister make a decision about F’s application for Australian citizenship. It is apparent that that correspondence did not satisfy the Department that Russell Kennedy was representing F in relation to his application for citizenship. That may be thought surprising given that the representation was made by a lawyer who was subject to rigorous professional obligations including a duty to act honestly: cl 4.1.2 Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015. In response to the letter, the Department telephoned Russell Kennedy requesting a completed Form 956 “Advice by a migration agent/exempt person of providing immigration assistance”. In response, Ms McMillan and Ms Dunlevie wrote to the Department explaining that pursuant to the Reg 7G(1)(b) of the Migration Agents Regulations 1998 (Cth), they were providing notification by letter, instead of by completed Form 956, that they were acting for F in relation to his application to become an Australian citizen. On 6 July 2016, Ms McMillan spoke by telephone to a solicitor representing the Minister in this proceeding. She requested that the solicitor advise the Minister to direct its correspondence in respect of F to Russell Kennedy. She was told that the solicitor would advise the responsible person in the Department by email. Ms McMillan told the solicitor that F was in Pakistan visiting his ill mother and was expected to return to Australia on 2 October 2016 and that an interview with F could be conducted by telephone if need be.
132 On 7 July 2016, F’s case officer advised Ms McMillan by email that although Russell Kennedy’s letter of 5 April 2016 had been received, the Department required a communication from F nominating his representative in writing. The email stated that since F was overseas, Ms McMillan should feel free to let him know that he could email directly to the case officer his nomination of Russell Kennedy as his representative. Ms McMillan deposed that she was able to contact F on 16 July 2016. She said that she requested he send an email to his case officer confirming that he had instructed and authorised Ms McMillan to act as his representative in connection with his application for citizenship. Ms McMillan deposed that on 20 July 2016, F informed her that he had emailed the Department as requested. It is likely that the email to which that evidence refers is the email to which I earlier referred addressed to F’s case manager and received on 17 July 2016 without any substantive content.
133 There are three other matters which I need to mention. First, in this proceeding F made an affidavit on 18 May 2016 which was filed on 25 May 2016 and, I would presume was served on the Minister shortly thereafter. F deposed that he had instructed Olivia McMillan and Sarah Manly of Russell Kennedy to contact the Department on his behalf in relation to the Department’s delay in responding to his citizenship application. His affidavit deposed that he was aware that by the letter of 5 April 2016 the Department had been contacted by Ms McMillan and Ms Dunlevie to advise that they were acting as his representatives for his application to become an Australian citizen. Second, there are no relevant statutory requirements specifying how a person is to nominate his or her representative for the purpose of a citizenship application. The Department has a policy which states that an applicant for citizenship “may nominate a representative by way of a written communication to the department”. Third, there is no mention in the Reasons of any involvement by Russell Kennedy and those Reasons may be fairly read as evincing the delegate’s view that F did not have a nominated representative. Moreover in this regard, the Department did not provide the Reasons to Russell Kennedy at the time of F’s decision, and instead left them to receive the Reasons from the Minister’s representatives in this proceeding.
134 From all of that I draw two conclusions. First, a reasonable person in the shoes of the delegate would have recognised that Russell Kennedy was both authorised to and likely to be able to inform the delegate of whether F intended to respond. That supports my conclusion that information to the effect that F intended to make a response was readily available to the delegate upon the making of a simple inquiry.
135 Second, in the knowledge that the Department had refused to recognise Russell Kennedy as F’s representative in the absence of a written nomination made in a communication from F, a reasonable person in the delegate’s shoes would not have had a basis for thinking that the absence of a communication from Russell Kennedy as to F’s intent to respond was demonstrative of F’s intent not to respond. In my view that conclusion leads to the rejection of the Minister’s contention that there was no reason for the delegate to have made the further inquiry for which F contended. But whether that failure to make the inquiry constitutes jurisdictional error is a larger question.
136 There is authority for the proposition that a decision-maker’s failure to make an obvious inquiry about a critical fact may be legally unreasonable or amount to a constructive failure to exercise jurisdiction and, on either basis, constitute jurisdictional error. The relevant case law is usefully summarised by Nettle J in Wei v Minister for Immigration and Border Protection (2015) 327 ALR 28 (“Wei v MIBP”) at  as follows (footnotes omitted):
It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision-maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc), Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J’s reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J expressly approved of Wilcox J’s reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le, Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.
137 That summary may be supplemented with SZMBX v Minister for Immigration and Citizenship (2009) 112 ALD 475 at , where Bennett J said that Minister for Immigration and Citizenship v SZIAI  HCA 39 established three conditions: first, whether the inquiry that the Tribunal failed to make was obvious; second, whether it concerned a critical fact, the existence of which was easily ascertained; and, third, whether it supplied a sufficient link to the outcome as to constitute a failure to review. I respectfully agreed with and adopted that approach in MZABA v Minister for Immigration and Border Protection  FCA 711 at .
138 In Wei v MIBP, a delegate of the Minister cancelled Wei’s student visa on the basis that Wei had not complied with a condition of the visa that he be enrolled in a course of education provided by a registered education provider. Wei was in fact so enrolled but his enrolment has not been recorded in PRISMS, the approved electronic database. Although attempts had been made to advise Wei of the intention to cancel his visa, that notice was never received by Wei.
139 Gageler and Keane JJ concluded that the exercise of the decision-making power was tainted by a material breach of an implied condition of its valid exercise, namely, the imperative duty imposed on a registered education provider to upload enrolment information onto PRISMS. Nettle J reasoned that the delegate had constructively failed to exercise jurisdiction as explained at – (emphasis added):
 In this case, the delegate was put on inquiry. As a result of the return of his letter of 3 February 2014 as “unclaimed”, he knew that the address shown in the records of the Department of Immigration and Border Protection as being the plaintiff’s address was not the plaintiff’s address. As a result of the return of his letter of 25 February 2014, he also knew that the address of the plaintiff supplied by the University was unlikely to be the plaintiff’s address. Inasmuch as the delegate knew that none of the communications which he had sent to the plaintiff had reached the plaintiff, the delegate knew that the plaintiff did not know that the Minister proposed to cancel the visa. As a result, the delegate also knew that the plaintiff would not have the opportunity, which ss 119–121 of the Migration Act contemplated that the plaintiff should have, of demonstrating to the Minister why the supposed ground of cancellation did not exist. Thus, until the prescribed time for responding under s 121(2) expired, it would have been apparent to the delegate, or it should have been, that it was more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed, and thus for the delegate to be as certain as reasonably possible that the plaintiff was not in fact enrolled at the University.
 As already mentioned, there was nothing in the relevant legislation that provided that PRISMS was to be treated as a conclusive record of enrolment. Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so — by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS was in fact correct — and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.
140 I have already concluded that F’s failure to provide more information despite what the delegate regarded as the opportunity given to F to do so was a critical aspect of the delegate’s non satisfaction as to F’s identity and that, as a result, F’s application was rejected. A critical fact implicit in the delegate’s reasoning was that F did not desire to provide any further identity information or provide an explanation as to what attempts had been made to obtain that information. Whether that was so was easily ascertainable. I have explained why in accepting F’s third proposition. It required no more than a telephone call or an email to F’s solicitor. I also regard the inquiry which should have been made as an obvious inquiry for the reasons I have given in accepting F’s second proposition. Unlike the facts of SZIAI (see at ) an inquiry of F’s solicitors could have, and indeed would have, yielded a useful result. The delegate would have been told that F wanted to respond. Given the criticality of the fact in question, the failure to inquire as to its accuracy supplied a clear link between the failure to make the inquiry and the delegate’s decision to refuse F’s application.
141 For those reasons, the delegate’s failure to inquire amounted to a constructive failure to exercise jurisdiction. For essentially the same reasons, the failure to inquire was also legally unreasonable. In Minister for Immigration v Le (2007) 164 FCR 151, Kenny J observed by reference to the authorities cited by her Honour at  that “[t]he concept of vitiating unreasonableness has been extended to the manner in which the decision was made”. At  Kenny J concluded that the failure by a decision-maker to make a straightforward inquiry for information that was apparently readily available and relevant to critical issues could be characterised as legally unreasonable.
142 A more recent example of a failure of a decision-maker to make a simple and obvious inquiry which vitiated the exercise of power for legal unreasonableness is found in Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 (Mortimer J). In that case, the Migration Review Tribunal dismissed an applicant’s review application when the applicant failed to appear at a hearing to which the applicant had been invited. Mortimer J held that in the context of the applicant’s proactive approach to the pursuit of her application for review, the failure of the applicant to attend at the hearing was out of character and that so much should have been obvious to the Tribunal. Mortimer J continued at :
… A tribunal acting fairly, according to substantial justice and the merits of this applicant's case, would have done what this Tribunal, and its officers, had been doing with this review applicant for the past five months: telephoned or emailed her. Subsequent events, as disclosed by the evidence, demonstrate that, when those methods of communication were used with the first appellant after the Tribunal decision, she was responsive in a timely way. There is no basis to conclude she would have been otherwise if telephoned or emailed either by the Tribunal officer who filled in the “no response” to hearing invitation form, or by the Tribunal member herself. In keeping with the conduct to that point, a simple telephone call or email after the “no response” form was filled in would, I find, most probably have resulted in the first appellant attending the second hearing.
143 No doubt each case will turn on its own facts. Having taken into account the subject matter, scope and purpose of the power conferred by s 24 of the Act, together with the “attendant principles and values of the common law concerning reasonableness in decision-making” (Eden at ), I am persuaded that in the context I have already explained, the delegate’s failure to inquire of F’s solicitors as to whether F desired to respond, lacked an evident or intelligible justification and resulted in the legally unreasonable exercise of the power conferred by s 24.
144 On the basis of the particular circumstances which have led me to the conclusion that the exercise of the delegate’s power was legally unreasonable, I have also concluded that the delegate denied F procedural fairness. For the delegate to have made a decision to refuse F’s application without making any attempt to clarify whether F sought an opportunity to be heard amounted to a failure to provide F with a reasonable opportunity to be heard: Li at – (French CJ); and Kaur at  (Mortimer J). For those reasons, I am satisfied that F’s refusal decision is affected by jurisdictional error and that the grounds of review in s 5(1)(a) and (2)(g) of the ADJR Act are made out.
145 F also contended that the delegate failed to take account of various relevant considerations. First, the Department’s Citizenship Policy (“policy”), by which an applicant for Australian Citizenship is to be provided 50 days to respond to a request for further information or documentation if they are outside Australia, and not 35 days as was provided to F. Second, the delegate failed to have regard to the prior identity findings made by delegates of the Minister expressly in F’s RSA and Protection visa applications, and implicitly in his Resident Return visa application.
146 In relation to the first of those contentions, even if I were to accept that the terms of the policy amount to mandatory relevant considerations in the sense contemplated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, I do not have sufficient evidence to make a finding that the policy was not in fact taken into account in the case of F. Under cross-examination, Ms Barrio gave evidence that the policy in relation to overseas applicants is interpreted to apply only to those who are outside of Australia at the time any letter requesting further information is sent. Ms Barrio gave only general evidence, describing what a case officer would do, and said nothing to indicate that it was this interpretation of the policy that was applied to the circumstances of F. It was, however, implicit in her evidence that she considered that F was not entitled to the benefit of the extended time for response under the policy. While it is true that the Reasons do not expressly avert to the policy, it was not necessary that they disclose every step of the delegate’s reasoning process. The Reasons should not "be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Given the existence of a reasonable alternative interpretation of the policy by which F would be provided with only 35 days to respond, as he was, the mere absence in the Reasons of any reference to the policy is not a sufficient basis for me to find that the policy was not taken into account.
147 For similar reasons I have found that the second aspect of the claimed failure to take account of relevant considerations must fail. Without deciding whether or not prior findings of the Department in relation to F’s identity amount to Peko-Wallsend mandatory relevant considerations, there is sufficient indication in the Reasons that those findings were taken into account. Under ‘Background’, the Reasons disclose that the delegate took account of a number of specific aspects of the identity claims made by F in his entry interview and Protection visa application. A less detailed reference is made to F’s resident return visa application. While no direct reference is made to the RSA, I take reference to the Protection visa application to include reference to the RSA upon which determination of the Protection visa application was based. Later, under ‘Consideration of Application’, reproduced at  above, the delegate said, “I have considered all available information at the time of the decision …”. This must be taken to include the evidence provided and findings made in respect of F’s identity in all previous applications to the Department. No submission was made by F as to why the prior findings were required to have been engaged with by the delegate in the Reasons in any more detail than they were. The ground of failure to take account of relevant considerations is therefore not made out.
148 The Minister contended that the discretion to refuse relief available under s 16(1) of the ADJR Act should be exercised for two reasons. I reject that contention for the reasons I later give at –. No submission was made that relief be refused by reason of the rule in Stead v State Government Insurance Commission (1986) 161 CLR 141. I discuss that rule in more detail below at – by reference to G’s application. For each of the reasons relied upon in relation to G, I have concluded in relation to F, that there is no basis for relief to be refused pursuant to the rule in Stead.
149 F accepted that for the Court to make the orders he seeks requiring the Minister to make a decision on his citizenship application, the refusal decision could not simply be set aside but would have to be regarded as no decision at all. F contended that if I found, as I have, that F’s refusal decision is affected by jurisdictional error it “is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at  (Gaudron and Gummow JJ, with whom McHugh J relevantly agreed). That principle was adopted by Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at . Most recently it was applied by the High Court in S297/2013 v Minister for Immigration (2015) 255 CLR 231 at  (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ).
150 A number of decisions of the Full Court of this Court have expressed the view that whether jurisdictional error will render a decision nugatory for all purposes may depend upon the statute pursuant to which the decision was made. Bhardwaj has not been regarded as establishing a “universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever”: Jadwan v Department of Health (2003) 145 FCR 1 at  (Gray and Downes JJ, with whom Kenny J agreed). Their Honours considered that the legal and factual consequences of such a decision “will depend upon the particular statute”. Those observations have been followed in Ma v Minister for Immigration and Citizenship  FCAFC 69 at  (Lander J, with whom Mansfield and Siopis JJ agreed); SZKUO v Minister for Immigration and Citizenship (2009) 180 FCR 438 at  (Moore, Jagot and Foster JJ); Yu v Minister for Health and Others (No 2) (2013) 216 FCR 188 at  (Jessup J); Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at  (Flick and Foster JJ with whom Katzmann J relevantly agreed) and see Lansen v Minister for Environment (2008) 174 FCR 14 at – (Moore and Lander JJ).
151 I respectfully agree with Muir JA (with whom Holmes JA and Lyons J agreed) who, at  of BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (2013) 1 Qd R 228, stated that “absent statutory provisions necessitating a contrary conclusion”, the general principle identified in Bhardwaj applies. There is no provision that I can see in the Act which necessitates a conclusion that a decision made under s 24 which is vitiated for jurisdictional error is not nugatory for all purposes. I think that was common ground. No submission to the contrary was made by the Minister.
Was the decision to refuse G’s application valid?
152 By letter of 15 July 2016, G was notified that his application for citizenship had been refused. The letter attached a “Decision Record” which set out the delegate’s reasons for that decision (“Reasons”). The Reasons commenced with a “Summary of Findings and Decision” which stated that G’s refusal decision was made on the basis that the delegate was not satisfied of G’s identity or that G was of good character.
153 That s 24(3) requires the Minister not approve a citizenship application unless satisfied as to the identity of the applicant has already been mentioned. Section 24(1A) also proscribes approval where the applicant does not meet the “General eligibility” requirements set out in s 21(2). Relevantly, s 21(2)(h) provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(h) is of good character at the time of the Minister's decision on the application.
154 The Minister did not dispute that he has an obligation to afford procedural fairness to an applicant for Australian citizenship. That concession is consistent with authority. As the High Court said in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) at  by reference to Annetts v McCann (1990) 170 CLR 596 (Mason CJ, Deane and McHugh JJ) at 598, “it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power”. Further, as the High Court explained in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) at , the obligation of procedural fairness extends to a discretionary power to confer a right, as any distinction drawn between the destruction, defeat or prejudice of a right, on the one hand, and a discretionary power to confer a right on the other, conceives too narrowly “the circumstances in which an obligation to afford procedural fairness might arise”. The principles of procedural fairness or natural justice may be excluded only by “plain words of necessary intendment”: Saeed at . It was not contended that the Act evinced any such intent in relation to the Minister’s power to approve or refuse to approve an application for citizenship pursuant to s 24 of the Act.
155 However, the Minister contended that there were aspects of the statutory scheme of the Act from which it should be implied that the nature and content of the procedural fairness obligation owed by the Minister was relatively confined. In this respect, the Minister pointed to the following features of the scheme in dealing with applications for citizenship:
There is no requirement for any hearing or interview;
A refusal of an application does not prevent further applications being made;
A refusal decision is reviewable by the Administrative Appeals Tribunal (“AAT”); and
From a practical perspective, the scheme envisages that large numbers of applications will be dealt with promptly on the papers.
156 Relying on that context, the Minister contended that procedural fairness may require no more than giving a person the opportunity of ascertaining the critical issues on which a decision is likely to turn and submitted that only the ‘gravamen or substance’ of the issue must ordinarily be brought to the person’s attention. In this case the Minister contended that that was done by the delegate informing G that the purpose of the interview was to assess G’s identity and character including by reference to information which G had provided to the Department in support of his citizenship application and previously. Additionally, the Minister said that because at the commencement of the interview G was told that the truthfulness of his answers was important to fate of the application, G could reasonably be expected to understand that inconsistencies and other discrepancies in his account might bear adversely on the assessment of his identity and character.
157 I accept that the content of the procedural fairness requirement imposed may be confined by the nature of the statutory scheme in which the requirement arises: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at – (Gleeson CJ and Hayne J); Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 (Kitto J). The factors that may throw some light on whether a statutory scheme intends to exclude or limit the requirements of natural justice were discussed by McHugh J in Miah at –. The existence of a right to review may affect the extent to which the requirements of natural justice apply at an earlier level of decision making, but there is no general rule. The nature of the original decision, namely, whether preliminary or final is relevant, as is whether the original decision is made in public or private and has a capacity to impact upon a person’s reputation. The formalities required by the process of making the original decision may be relevant. The requirement to give reasons supports the inference that the obligations of natural justice apply. Other considerations include the urgency which may attend the original decision, the nature of the appellate or reviewing body and the breadth of any such appeal or review. Lastly, the nature of the interests and the consequences for the individual of the original decision together with the importance of the subject matter of the legislation are important.
158 I accept that, in this case, the capacity for review by the AAT tends to suggest an intended curtailment of the content of procedural fairness. However, there are other features which point in the opposite direction. First, the scheme of the Act is addressing important rights (“full and formal membership of the community of the Commonwealth of Australia”: Preamble); second, if an adverse decision is made, s 47(3) obliges the Minister to provide reasons for the refusal. Next, the nature of the original decision is final rather than preliminary. Whilst the decision was not made in public, it nevertheless had the capacity to affect G’s reputation given that it involved an assessment of whether he was of good character. Finally, the consequences for G included the denial of an important status with all its attendant protections. When all of the considerations put forward by the Minister are taken into account with those just mentioned, I do not regard the content of the procedural fairness obligations owed by the Minister in relation to an application for citizenship to be relatively narrower than the content of that obligation as expressed in the authorities to which I will now refer, the first of which was relied upon by both the Minister and by G.
159 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–592, Northrop, Miles and French JJ stated (emphasis added):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41.
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
160 Those observations were endorsed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at 161–162. Further, the High Court confirmed and summarised these principles in its unanimous judgment in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) at – (footnotes omitted, emphasis added):
… compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice".
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
161 Insofar as the Minister contended that the requirement upon the delegate to identify the issues to be considered could be satisfied simply by the delegate identifying that G’s character and identity would be explored, I disagree. In Kioa v West (1985) 159 CLR 550 at 587, Mason J said this:
In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.
162 Bearing in mind that the guiding principle is one of fairness (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 82; at  (Allsop J, with whom Gyles and Conti JJ agreed on this point)), the obligation upon the delegate to notify G of the critical issues on which the decision was likely to turn cannot have been discharged at the level of generality for which the Minister contended. The critical issues to be considered and any adverse information relied upon by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond: SZMUF v Minister for Immigration and Citizenship  FCA 182 at  (Flick J).
163 As the High Court observed in SZBEL at –, the obligation upon a decision maker is an obligation to reveal to the person who may be affected by the decision those issues which were “live”, including, as in the facts of that case, the assumptions that underpinned that person’s account which the decision maker considered to be in issue. As Besanko J put it in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at :
In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
164 I considered the content of the obligation upon a decision-maker to identify information that may be taken into account adversely to the interests of an applicant in Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417. I adopt what I said there (at ):
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at . That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at  and see at .
165 I accept G's submission that it would not be sufficient for the delegate to have merely told G that he must meet identity and character requirements leaving it to G to anticipate and address every conceivable issue that might possibly arise in relation to those broad topics. Unless it was “obviously…open on the known material” (SZBEL at ) that a particular issue or concern adverse to G would likely be taken into account by the delegate, the delegate was bound to identify the concern on a matter critical to the success of G's application. The delegate was also bound to inform G of the nature and content of adverse information which she may take into account which was not part of the material known to G to be before her. The delegate was not, however, required to disclose her deliberative processes or proposed conclusions: Miah at  (Gleeson CJ and Hayne J).
166 The purpose of the imposition of the obligation to accord procedural fairness is the avoidance of a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). But that is not to say that the Court must be satisfied that the non-disclosure of a live issue or adverse information had a material effect on the outcome, it suffices if the denial of an opportunity to be heard deprived the person affected of the possibility of a successful outcome: Coutts v Close  FCA 19 at – (Griffiths J). Moreover, in order to show that a practical injustice has been done, it is unnecessary for an aggrieved applicant to point to the evidence which might have been relied upon to displace the adverse finding had opportunity been given. In Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, Redlich JA said at  (footnotes omitted):
An examination of current authorities led Ipp JA in Seltsam to conclude that “it will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome” as in most cases the facts will speak for themselves as showing that a properly conducted trial might possibly have produced a different result. Federal Court decisions also point to there generally being no obligation upon an applicant who complains of procedural unfairness to positively establish that, absent the unfair process, they would have taken a different course and that the process has resulted in practical injustice. As Weinberg J stated in Applicant M1015/2003 v MIMIA:
“Where an applicant does not given evidence of what he or she would have done had they been told that the tribunal intended to rely upon particular information adverse to their case, there is no general or inflexible rule that procedural unfairness cannot be demonstrated. That is not to say that evidence of this type is relevant, or even that the absence of such evidence may not be decisive in some cases. It is simply to say that there is no prerequisite that such evidence be given in all cases in which procedural fairness is alleged.”
167 As the Reasons state, the delegate conducted an interview with G on 12 July 2016 for the purpose of gathering information to assess G’s application. The interview had been arranged by the delegate who contacted G by telephone on 6 July 2016 and also sent a letter to which I will later refer. On 11 July 2016, Ms McMillan spoke with the delegate and was told that the interview was to assess G’s identity by discussing his “life story” and to determine whether there were any further identity documents which could be presented in support of G’s identity. Ms McMillan and Ms Dunlevie of Russell Kennedy attended the interview as G’s nominated representatives.
168 The transcript of the interview was in evidence. It records that, at the outset, the delegate made two observations to G which, as will become apparent, are of some consequence. First, G was told that it was important that he answer questions truthfully and that under s 50 of the Act it was an offence to make any false or misleading statement or conceal information. Second, the delegate said this:
You will be given an opportunity throughout the interview to respond to any information that we find is not clear, is contradictory to other responses you’ve provided or concerns us in relation to the claims you’ve made.
169 There are observations made towards the end of the interview which are also relevant. The delegate said this:
Okay. So just to clarify, the fact that you have a Facebook account in a different name isn't of concern particularly, because that's not uncommon. What is of concern is that at the start of the interview we clearly said that you need to provide truthful information and be honest, and we asked you if you had a Facebook account, and you said you did not.
170 That comment was thereafter followed by this observation from the delegate:
So the concern that I have is that you've – you have not provided truthful information today in relation to that [Facebook] account, when it was quite an easy question. You've also declared to us today that you've also provided false information to an Australian Government authority, and you haven't made attempts to rectify that.
171 G’s legal representatives then made some brief observations about each of the two concerns the delegate had identified in the extracts just quoted. The delegate was then asked by G’s representative whether there were any outstanding issues that they could address by further submissions. The delegate indicated that any further submissions should be based on the two issues that had just been dealt with. Just prior to the interview ending, G’s representatives again asked whether there was anything else that they needed to obtain and said, “[i]s it just those two issues, or are there any other issues of concern”. To that the delegate responded, “[m]aybe we’ll follow it up”. The delegate was then asked again, “[p]erhaps just to clarify if there are any other issues or its just those two issues”. In response the delegate said, “[y]ep. Yep. Okay. All right”. There was no follow up by the delegate.
172 On 13 July 2016 Russell Kennedy wrote to the Department to address the two concerns raised by the delegate at the end of the interview. The letter also requested an opportunity to respond to any “critical issue or factor on which the decision is likely to turn”. Fairly read, the letter was requesting the delegate to identify any further issues not previously identified as likely to be taken into account in support of any rejection of G’s application. The letter was responded to by the Department and, without raising any further issues, the Department advised that the delegate would then consider her decision.
G’s good character
173 The delegate’s non-satisfaction that G met the good character requirement was based on two considerations. The first related to how G obtained a full driver’s licence from the New South Wales Road Traffic Authority and later from VicRoads. The Reasons record that during the interview, G was asked to present any Australian documents in his possession. He located and presented his VicRoads driver’s licence and also a New South Wales Learner driver’s licence. The Reasons then state (paragraph numbers inserted, emphasis added):
1. [G] was asked to explain how he obtained his licence in Sydney and he indicated that he went to the Road Traffic Authority (RTA), sat the learner's test and obtained a learners permit which he held for three (3) or four (4) months. He then stated that he had been told he would not be able to obtain employment unless he held a full driver licence. He then admitted that he paid $150 to obtain a fraudulent Afghan driver licence which he presented to the RTA and subsequently obtained a full driver licence.
2. When [G] moved to Victoria he transferred his NSW driver licence to a Victorian driver licence by showing his NSW licence. He also stated at interview that he could not locate the original fraudulent Afghan licence at the time, so he took a copy of the fraudulent Afghan driver licence with him to VicRoads but did not present it as he was not requested to do so.
3. [G] stated that he realised his mistake three (3) months ago and disclosed it to his nominated representative. It should be noted that his representative submitted verbal clarification during the interview and stated that he had discussed the matter with her one (1) week before the interview and not three (3) months as stated by [G].
4. In addition to obtaining and presenting a fraudulent document to an Australian government authority, I also take into consideration that licencing requirements exist to ensure the safety of the Australian community. It is essential that drivers have the necessary experience, skills and knowledge to drive safely on Australian roads.
5. During the recent interview, [G] admitted that he drove whilst he was living in Iran although he did not have a driver licence. He advised that he drove once a week or once a fortnight. Although he has indicated that he drove in Iran, on the basis of his own information, he did not possess a licence to drive and would therefore not have undergone the necessary training and testing required to ensure he had the appropriate skills to drive safely. Therefore, he obtained a full Australian driver licence instead of a provisional licence to which he was entitled, potentially placing people on Australian roads at risk of harm.
6. The NSW Roads and Maritime Services 'Road Users Handbook' states the following:
“Think of your licence as a 'contract', or an agreement between you as a driver and the rest of society. Roads & Maritime and the NSW Police administer this contract on behalf of the people of NSW”
[G] breached that contract when he utilised a fraudulent document to obtain a full driver licence to which he was not entitled.
7. In his explanation, [G] stated that in 2010 “lots of people did it." However, I do not accept that this in any way lessens the seriousness of his behaviour. I accept [G] may have had financial and personal reasons to try to secure employment, however, I do not accept that those reasons justify obtaining and presenting a fraudulent document to an Australian government authority.
8. Although I accept [G] may only have notified his nominated representative a week before the interview, I do not accept that he has not had sufficient time to notify relevant Victorian and NSW licence authorities. I give this factor significant weight in my assessment of his character.
9. Furthermore, based on the written statement, it is submitted that it was approximately three (3) months ago when [G] was considering why his citizenship application was being delayed, that he remembered the way in which he obtained his full NSW driver licence. I take into consideration that on the basis of this submission and the information discussed during interview, it would appear that [G] was only now concerned about the way in which he obtained his full licence because it may be adversely affecting his citizenship application. Therefore, I do not accept the claim in the submission that he is ''devastated by his mistake'·.
10. In the written statement, [G]’s nominated representatives submit that he has “taken full responsibility for his actions" and that he has “instructed (us) to write to VicRoads on his behalf to attempt to correct his Victoria licence". I do not accept the submission that he has taken full responsibility for his actions given there is no evidence to confirm that he has notified the relevant Victorian and NSW licence authorities and I also take into consideration that he recalled his "mistake" three (3) months ago but did not advise the relevant authorities ..
11. It is also submitted that it was a "single, isolated action”, however, I do not accept this assertion given [G]’s statement during the interview that he attempted to locate the original fraudulent Afghan licence when he applied for his Victorian licence and that he subsequently took a copy instead when he could not locate the original. I take into consideration that he advised that he did not present the copy, however, I give weight to the fact that he was prepared to present the document if requested to do so.
12. Furthermore, I take into consideration that when [G] applied to transfer his licence to a Victorian driver licence, he presented his full NSW driver licence, a document that he had fraudulently obtained and to which he was not entitled. I also give significant weight to the fact that it is an offence under the Road Safety Act 1986 to provide false and/or misleading information or documents to VicRoads.
13. Although there is no evidence to indicate that [G] has been charged or convicted of an offence under the Road Safety Act 1986, I find this is on the basis that he is yet to notify the relevant authority. I take into consideration that when he notifies the relevant authorities he may be charged with an offence.
14. I accept the oral submission that it was not [G]'s intention in presenting his VicRoads driver licence in support of his application for Australian citizenship to de-fraud the Department. I also accept the written submission that he did not knowingly mislead the Department when he lodged his application. However, I find that he had opportunity to disclose the way in which he obtained the licence at the time of lodging his application, and also when he presented the document in support of citizenship test registration, and that in the absence of a client disclosing any information, documentation may be accepted as legitimately obtained.
174 Later in the Reasons, the delegate said this (paragraph number inserted):
15. I acknowledge that [G] does not have any pending criminal charges or convictions. However, I take into consideration that he has instructed his lawyers to write to VicRoads and that he may be charged with an offence after this information has been presented to the licencing authority and I give this significant weight in my assessment.
175 The second basis for the delegate’s non-satisfaction as to G’s character was that when first raised during the interview G did not, when asked if he had any alias, declare that he had a Facebook account in another name and only did so when asked about social media on a second occasion. The delegate came to the view that G “was not initially truthful about the existence of his account”. She did not accept the explanation given that G had failed to answer the question truthfully because he was settling into the interview. Having made those observations, the Reasons then state (paragraph number inserted):
16. The existence of a social media account, and any communication and activity on that account, all form part of a person's social footprint and in turn their identity. This includes the people they are linked to and communicate with, information they share on social media such as photographs, comments, and articles. I take into consideration that the initial omission in and of itself, might not hold significant weight when considering his identity and character, however, it is also possible that a person may not disclose this information to the Department if they feel it is not in their best interest to do so such as the potential to ·uncover previously undeclared relationships. Therefore, I give some weight to the fact that [G] only declared the existence of a Facebook account when asked a second time.
176 G contended that, as to the delegate’s non-satisfaction about his good character, the delegate denied him procedural fairness by denying him a meaningful opportunity to comment on or respond to critical issues and information the delegate gave weight to. In that respect I presume that G relied upon the ground of review specified by s 5(1)(a) of the ADJR Act. The asserted denials were said to have arisen in relation to the following findings made by the delegate:
that G had not undergone the necessary training and testing required to ensure that he had the appropriate skills to drive safely on Australian roads, and had thereby potentially placed people on Australian roads at risk of harm (“first contention”); and
that G may be charged with an offence under the Road Safety Act 1986 (Vic) once the information about his false Afghan driver’s licence is provided to VicRoads (“second contention”).
177 G also contended that the G’s refusal decision was tainted by jurisdictional error because the delegate had failed to have regard to relevant matters in coming to the conclusion that she could not be satisfied that G was of good character. I presume that here the s 5(2)(b) ground of review is relied upon. In that respect, G contended that the delegate was required to take into account the nature and seriousness of any possible charge or conviction in respect of the provision of false or misleading information to VicRoads, including the elements of the offence and the penalty attached to the offence. The failure to do so was said to amount to jurisdictional error by a failure to have regard to relevant considerations as well as by asking the wrong question (“third contention”).
178 In relation to G’s initial failure to disclose the existence of his Facebook account, G contended that findings or inferences of fact were made which were unsupported by probative material or logical grounds, which I presume is a contention of jurisdictional error based on legal unreasonableness and a contention made in reliance upon the s 5(2)(g) ground of review. The contention is based upon the observation made by the delegate at  of the Reasons set out above. G contended that the delegate had attached some weight to G’s initial failure to disclose the existence of his Facebook account for the sole reason that it was “possible that a person may not disclose this information to the Department if they feel it is not in their best interest to do so such as the potential to uncover previously undeclared relationships or information”. G contended that the stated reason for giving that matter any weight was directed to a hypothetical possibility expressed in general terms. No finding was made by the delegate that G himself had sought to hide any previously undeclared relationships or information. G contended that, on the contrary, the delegate appeared to accept that the name in which G’s Facebook account had been created was nothing more than “the name he uses on social media”. It was said that in those circumstances, there was no logical ground and no probative material on which to find that G had any ulterior motive for being “untruthful” when he was first asked about social media accounts. G contended that the mere fact that he had not initially disclosed the existence of his Facebook account was not of itself probative of any adverse finding as to his good character, simply on the basis that other persons might have an ulterior motive for not disclosing information of this nature (“fourth contention”).
179 What I have called the first contention is based upon what the delegate said in the Reasons at  and  and her finding that G potentially placed people on Australian roads at risk of harm. As the last sentence of  suggests, the delegate seems to have come to that conclusion on the basis that G did not possess a licence to drive in Iran and would not have had driver training there and therefore had never undergone driving training. The reasoning seems to ignore the fact that to obtain a provisional licence in New South Wales, as G had validly done, must have involved G being trained and tested. I accept G’s contention that the delegate appears to have proceeded on a misunderstanding of the processes by which G obtained his New South Wales driver’s licence. The effect of G’s reliance on the false Afghan driver’s licence was to enable him to obtain a full NSW licence rather than a provisional licence. The Minister contended that by the use of the fake Afghan licence, G avoided being the subject of restrictions which are placed on the holder of a provisional licence and which promote road safety. It’s possible that that was all that the delegate had in mind, but the Reasons suggest a broader concern about G’s capacity to drive safely. I accept G’s contention that the delegate gave weight to a finding that, having not undergone appropriate training, G potentially placed people on Australian roads at risk.
180 That concern was not mentioned at all during the interview and I do not consider that G was provided with a meaningful opportunity to respond to that issue. That concern was critical to the delegate’s conclusion that G was not of good character.
181 The observations made by the delegate identified at  above were apt to have reasonably led G (and his legal representatives) to the view that the only concern that required any further response by way of the foreshadowed written submission and in relation to the use of the fake Afghan licence, was the delegate’s concern that G had provided false information to an Australian government authority and had not made attempts to rectify it. Procedural fairness required the delegate to have expressly raised this concern in the context of the delegate’s preparedness to accept further post-interview submissions and her prior identification of the issues that required a response: cf Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 12–13.
182 The approach taken by G’s solicitors to the making of post-interview submissions and the delegate’s preparedness to receive further submissions suggest that, if the delegate’s concern had been identified, the opportunity to respond would have been utilised. In my view, a practical injustice has been demonstrated.
183 G’s second contention is based upon the delegate’s finding at  of the Reasons that G may be charged with an offence under the Road Safety Act 1986 (Vic) (“Victorian Road Safety Act”) for providing false and/or misleading information or documents to VicRoads. This was a finding to which the delegate gave “significant weight” (at ). For essentially the same reasons as those that pertain to my conclusion in relation to the first contention, I do not consider that G was given a meaningful opportunity to respond to this adverse consideration. The issue was not raised at all during the interview. Whilst I accept that it should have been apparent to G that a concern of that kind may be taken into account by the delegate, the observations made by the delegate at the end of the interview would have had the effect of negating what otherwise may have been apparent.
184 Had the delegate identified the concerns which were critical to her decision, I am satisfied that G would have provided a response and had something meaningful to say including as to whether G’s conduct (in relation to obtaining his NSW licence) was capable of contravening the Victorian Road Safety Act. A meaningful opportunity to respond was therefore denied to G and a practical injustice has been shown.
185 A further and related submission, which is G’s third contention, is that the delegate failed to have regard to relevant considerations by not taking into account the nature and seriousness of any charge or offence which may be brought against G under the Victorian Road Safety Act. Whilst I accept that the nature and seriousness of any such charge or offence could have been the subject of a meaningful response by G, I reject the third contention. I do so because first, the consideration in question is not a consideration that the delegate was required to have regard to: Peko-Wallsend at 39–40. In any event, I am not satisfied that the delegate did not have regard to the nature and seriousness of the possible charges or offences in question. At  of the Reasons, the delegate made reference to a VicRoads webpage in support of her observation that “it is an offence under the Road Safety Act 1986 to provide false and/or misleading information or documents to VicRoads”. That suggests that the delegate was aware of and took into account the nature of the possible charge or offence. For the purposes of determining whether a good character test was satisfied the seriousness of the offence was sufficiently self-evident from its nature and, I would infer, taken into account by the delegate.
186 I turn then to the fourth contention, the content of which I have described at  above. Clearly the delegate’s Reasons at  are problematic. However, I think that is more likely to be the result of poor expression than irrationality. Fairly read, I think that what the delegate was trying to say was this: I might have given G’s initial failure to reveal his Facebook account no significant weight if I could exclude the possibility that his non-disclosure was not deliberate and designed to avoid revealing previously undeclared relationships; as I cannot exclude that possibility, I give it some (but not significant) weight. Properly understood, I consider the conclusion fell within the delegate’s area of decisional freedom and did not cross the bounds of legal unreasonableness.
187 It is convenient that I now turn to consider the numerous allegations made by G that procedural fairness was denied to him in relation to the determination made by the delegate that she could not be satisfied as to his identity. I should commence by describing the general approach taken by the delegate to that question as revealed by the Reasons. The delegate considered that G’s identity was to be assessed from the time of his birth. She regarded that “the three pillars” to establishing a person’s identity were documents containing biodata, personal identifiers/biometrics and the person’s “life story”. By reference to the Attorney-General’s Department’s National Identity Proofing Guidelines (2004), the delegate seems to have accepted that some people face genuine difficulty in providing the evidence necessary to identify themselves to the required level of assurance (although what that level is was not stated). In such circumstances, the delegate noted that “a detailed interview with the person about their life story to assess the consistency and legitimacy of their claims” may be considered. That last observation identifies the approach which the delegate largely took to determining whether she could be satisfied of G’s identity. In large part, the delegate was not satisfied as to G’s identity because of what she regarded as being discrepancies in G’s “life story”.
188 The first discrepancy relied upon by the delegate concerned G’s claimed year of birth. The delegate concluded that she had “serious concerns” (by which I presume the delegate meant “serious doubt”) regarding G’s claimed year of birth. That was based on two aspects of G’s “life story”. First the year that G’s father died and secondly G’s age at the time of first commencing work. As to the first, the delegate said that she placed “significant weight on the inconsistent information [G] has presented to the Department regarding when he claims his father died including his age at the time of his father’s death and also how long the family were residing in Iran prior to his father’s death”.
189 The asserted inconsistency is based upon what the delegate considered G had said during an “entry interview” in February 2010 when he first arrived in Australia, as compared with what G said during his interview with the delegate. The finding is the subject of G’s fifth contention. G contended that in breach of procedural fairness, the delegate failed to raise with him that he had previously provided information to the Department during his entry interview which was inconsistent with information he provided at the interview with the delegate. G contended, and I accept, that there was no reference made during the interview with the delegate to information that G had provided during his entry interview. Neither the nature or content of the inconsistency or discrepancy that the delegate fastened upon in her Reasons was identified to G at an earlier time and he was not given an opportunity to explain or otherwise respond to it. That occurred in circumstances where, as I have detailed in  above, the delegate told G that he would be given an opportunity to respond to any information that “is contradictory to other responses” G had provided.
190 A number of authorities have considered the failure of a decision-maker to provide an applicant with an opportunity to respond to what the decision-maker regards to have been a prior inconsistent statement: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at – and  (Merkel J); Minister for Immigration and Multicultural Affairs v Awan (2003) 131 FCR 1 at , –,  (Marshall and Merkel JJ); and Frost v Kourouche (2014) 86 NSWLR 214 at  (Leeming JA, with whom Beazley P and Basten JA agreed). As Leeming JA said in Kourouche:
It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550…
191 In this case, the delegate relied on what she regarded were prior inconsistencies to support a conclusion adverse to G without giving G the opportunity to meaningfully comment or explain. Whilst I would accept that it may have been apparent to G that statements previously made by him to the Department might be examined for inconsistencies, he was not in a position to know what aspect of what he had previously said may be regarded as inconsistent with anything said by him during his interview with the delegate. It was not obvious or apparent that information recorded in the entry interview about when G’s father returned to Afghanistan would lead to an adverse conclusion as to G’s identity.
192 I am satisfied that had G been given an opportunity to respond to the adverse conclusion reached by the delegate that he had made a prior inconsistent statement, he could have given a meaningful response. The record of the entry interview provides a basis for thinking that the delegate was wrong to take the view that what the entry interview recorded G as stating was inconsistent with what he said to the delegate. The entry interview records G as saying that “after 1989” his father returned to Afghanistan from Iran and died in fighting in Kabul. That entry follows an earlier entry identifying that in 1989 G and his family moved from Afghanistan to Iran. In the Reasons, the delegate stated that during G’s entry interview “he advised that his father died in 1989 during fighting in Kabul” (emphasis added). That observation is wrong. It mischaracterised what is recorded in the entry interview. That mischaracterisation was then the basis for the delegate finding that there were discrepancies in the information given by G at the interview in relation to when his father died, his age at that time and how long the family had resided in Iran prior to the death of G’s father. That asserted discrepancy was then used by the delegate in support of the conclusion that there was serious doubt as to G’s year of birth. This is a clear instance of a breach of procedural fairness and I am satisfied that a practical injustice has been shown.
193 The second basis upon which the delegate determined that she had serious concerns regarding G’s claimed year of birth (what I will call G’s sixth contention), was that during the interview with the delegate, G stated that he was about 16 or 17 years old when he started work. On a “Form 80” which G signed and provided on the same day as the interview, G declared, in answer to a question regarding his employment in Iran, that he had various casual jobs from “approx. Dec 1989 to approx. 2007”. The delegate observed that based on G’s claimed year of birth (1979) he would have been 10 years of age if he started working in Iran at the time stated in the Form 80. The delegate recognised the possibility that the date stated in the form may have been a mistake. However she concluded that, when viewed in combination with the inconsistent information G had provided in relation to his father’s death, there were significant doubts about G’s claimed year of birth.
194 G was not given an opportunity to comment on or respond to the alleged inconsistency between what he stated at the interview and what he put on the form. That occurred despite the assurance made by the delegate at the outset of the interview. Clearly, one of the dates or times given by G for when he had commenced work was wrong. G was not put on notice of any inconsistency in the Form 80 which might lead to an adverse conclusion as to G’s claimed age and thus his identity. It was unfair for the delegate not to have provided G with an opportunity to clarify the discrepancy, particularly given the real possibility that it was based upon unconscious error. The reliance made by the delegate upon the first discrepancy as to G’s claimed year of birth to support the second is also problematic given my earlier conclusion as to the breach of procedural fairness in relation to the first. In any event, whether by reason of the first finding of a discrepancy or a combination of the first and second finding, the ultimate finding of the delegate that there are serious doubts about G’s claimed year of birth is tainted by a failure to have accorded G procedural fairness.
195 There was one further factor that the delegate concluded had contributed towards adverse findings in relation to G’s life story. The delegate stated that G had provided inconsistent information in relation to how long he had studied in Iran. That was the subject of G’s seventh contention. The Reasons state that “during the Entry Interview he declared it was for five (5) years and during the recent interview he declared that it was for two to two and a half (2-2 ½) years”. Again, no suggestion was made to G that what he had said was inconsistent with the information recorded in the entry interview and, again, that occurred despite the delegate’s prior assurance that G would be given an opportunity to respond to any information that the delegate found to be “contradictory to other responses [he had] provided”. That also occurred in circumstances where, to my mind, it would have been obvious to a fair minded delegate that there was some confusion in G’s mind (or perhaps in the interpretation into English of what G was saying) between a school year or grade and a calendar year. When asked at the interview with the delegate whether G had gone to school in Iran, G initially said (through an interpreter) “I went for three – like, four, five years or so, like, four, five classes, sort of … I did 4 or 5 grade”. The delegate then sought clarification as to whether G meant four or five years or four or five classes. G then explained that each grade or level would take three or four months to complete and that once completed he moved to the next level. Given the apparent ambiguity in G’s initial answer as to whether by “years” he meant school grades, an obvious issue arose as to whether when the entry interview recorded “5 years” it had accurately recorded what G actually meant. G was given no meaningful opportunity to provide any explanation in circumstances where there is an apparent basis for thinking that an explanation would have negated the existence of any prior inconsistent statement. An adverse conclusion as to G’s identity was made on the basis of information of which G had no notice. In this respect also, G was denied procedural fairness and a practical injustice is established.
196 The delegate also relied upon a further matter that she regarded as an inconsistency and which G challenged (G’s eighth contention). The Reasons say this:
I find [G]’s admission that he drove whilst in Iran and his relaxed approach to the possibility of being stopped by Iranian authorities, is inconsistent with his claims about the treatment of Afghan Hazaras in Iran. I do not accept that an undocumented person living illegally would not hold strong reservations about driving on a regular basis without being able to present a driver licence, whether it be genuinely or fraudulently obtained.
197 The Reasons do not identify any specific link to any claims about the treatment of Afghan Hazaras in Iran to which that passage refers and neither the Minister nor G pointed me to what the delegate may have been referring to. However I suspect, given the delegate’s reference to “undocumented person living illegally”, that the delegate had in mind G’s statement during the interview (when questioned as to why he did not register with the Iranian authorities) to the effect that unregistered people living in Iran may be deported once they make themselves known to the Iranian authorities.
198 G contended that he was not asked to comment or make submissions on whether his approach to driving in Iran was inconsistent with his claims about the treatment of Afghan Hazaras in Iran. However, to my mind, a breach of procedural fairness is not made out in relation to this finding of inconsistency. The transcript records that the delegate did raise with G whether, given that he was an undocumented resident, he was fearful of being deported if he was stopped by the authorities whilst driving unlicensed. Whilst no reference was there made to G’s prior evidence about undocumented residents being deported, I think it was sufficiently apparent that the question was directed to G’s prior reference. There was, in my view, an apparent opportunity for G to have explained why he was not fearful of deportation as a consequence of being stopped whilst driving when he had identified such a fear in explaining his failure to register with the Iranian authorities. In fact, on my reading of the exchange with the delegate on that topic, G gave an explanation. He said he only drove a car occasionally. He also said that the traffic authorities were not strict on traffic rules like they are here in Australia and that they mainly stop motorbikes rather than other vehicles. He also said that being caught by the traffic authorities was not a problem. He said that it was easy if you get caught, you just pay a fine and they will be happy to let you go. In the absence of evidence to the contrary, that, to my mind, provided a plausible explanation as to G’s “relaxed attitude”. However, whether the delegate came to an erroneous conclusion is not in issue. G’s challenge to this finding was only put on the basis of procedural fairness and, for the reasons I have explained, that challenge is not made out.
199 There were a number of findings made by the delegate which contributed to her non-satisfaction about G’s identity which were based on a lack of documentation or a lack of effort by G to obtain documentation which confirmed his “life history”.
200 Before dealing with those, it is convenient that I set out some further background to the interview with the delegate. As mentioned previously, by letter of 20 June 2016, G was contacted by the Department. That letter encouraged him to obtain any original documents from his “country of origin” that would assist with confirming his identity, citizenship or status prior to arriving in Australia. Mention was made of the kind of documents that he might be able to provide. It was stated that if G was unable to provide documents of the kind requested he could provide a written statutory declaration explaining what attempts he had made to obtain the documents and the reasons why he was not able to present them. A letter dated 6 July 2016 and received by G at or about that time, was forwarded by the Department advising G of the interview with the delegate. That letter also encouraged G to obtain “original documents” from either his country of origin or his previous country of residence, which would assist in confirming his identity, citizenship or status prior to arriving in Australia. G was asked to bring to the interview any documents that he was able to obtain. Some 24 categories of documents were listed. It was stated that if G was unable to present “any” of the documents listed he should provide a written statement in a statutory declaration and a detailed explanation of what attempts he had made to obtain the documents and the reasons why he was not able to present them.
201 There are several conclusions made by the delegate about documentation relating to G’s children which G challenges. The first challenge (G’s ninth contention) relates to the delegate relying on country information to say that “the birth of every child born in Iran, regardless of the nationality of their parents shall be reported to officials”. G complains that the country information was not mentioned during the interview and he was not asked to comment or make submissions on that matter. I accept that to be so but I reject G’s contention that he was denied procedural fairness on this issue. No submission was made that reliance on that information was utilized to reach a conclusion adverse to the approval of G’s application and it is not clear to me that any such conclusion was made. In those circumstances, no practical injustice is made out.
202 G brought to the interview copies of his children’s vaccination cards but not their birth certificates. The Reasons record that G confirmed that both of his children were born in a particular hospital in Iran which he named and that although “they were given paperwork when the children were born, he is not sure where those documents currently are”. The delegate gave significant weight to G’s failure to produce his children’s birth certificates. Relevantly the Reasons state:
I take into consideration [G] has not indicated that he is attempting to obtain his children's birth certificates or making arrangements to obtain new certificates if he is unable to locate their original ones; therefore, I make this decision on the basis of the information already provided to the Department.
I find that regardless of [G’s] status in Iran, he would have been given birth certificates for his two children born in Iran. Given there is no evidence to the contrary, I accept that he has two children, however, on the basis of the information provided there is no evidence to confirm the children were born in Iran, their status at the time of birth or the status of their parents at the time of their birth.
I find it is reasonable to expect that [G] could have provided his children's birth certificates which could confirm his status in Iran and also prior to arriving in Australia. I also find it is reasonable that if he no longer has the documents, he could have demonstrated a willingness to obtain new documents given it could potentially support his claim to be unlawfully resident in Iran at the time of their births. I also note that he has travelled to Iran on four separate occasions and therefore, has had the opportunity to obtain documents he did not have on arrival to Australia.
203 G complained (G’s tenth contention) that during the interview he was not asked to comment or make submissions on whether he could or would obtain his childrens’ birth certificates or whether he could or would make arrangements for new birth certificates to be issued.
204 I do not accept that G did not have an opportunity to explain whether he could obtain his childrens’ birth certificates. In fact, as the Reasons record, G explained that he was not sure where those documents were. However, I am satisfied that at no point was G given an opportunity to address his “willingness to obtain new documents” if he no longer had the original birth certificates. The failure of G to demonstrate a willingness was clearly held against him by the delegate including because G had travelled to Iran on four separate occasions and therefore, so the delegate reasoned, had the opportunity to obtain documents he did not have on arrival in Australia. G was not asked during the interview to comment or make submissions on either his willingness to obtain new birth certificates or the opportunity, if any, that travelling to Iran may have provided him to so do. Nor was there any request made in the pre-interview correspondence which sought to illicit an explanation from G as to his willingness to obtain replacement documents. Both letters referred to “original” documents and it was only the second letter (generated some 6 days prior to the interview) which sought documents from G’s previous country of residence (ie Iran). How, in that context, G’s prior trips to Iran could have rationally been regarded as demonstrative of G’s unwillingness to obtain the documents in question is not clear. I am satisfied that G was not given notice that his willingness to obtain replacement birth certificates for his children was in issue and afforded a reasonable opportunity to be heard about that matter. That matter formed part of the delegate’s view that G had failed to provide documentary confirmation of his “life story” which was a critical factor on which the decision turned. The lost opportunity amounted to a practical injustice.
205 G also challenged the delegate’s finding that there “is no evidence to confirm” that G’s children were born in Iran (G’s eleventh contention). The basis for that challenge was that the vaccination cards produced by G contained evidence that his children were born in Iran on the dates there stated.
206 The Reasons address the vaccination cards in the following passage:
Although the copies of [G]’s children's vaccination cards contain the child's name, date of birth and names of their parents, it does not contain information that would otherwise be listed on the birth certificates issued by the hospital which specifically provide information about the parents' status. The vaccination cards do not contain any information about the children's place of birth or their status in Iran. During the interview, [G] advised that anyone living in Iran is able to get immunised regardless of their status and therefore I place no weight on the vaccination cards in relation to confirming either [G]’s or his children's status in Iran.
207 What the delegate meant by “status” is not clear although it seems to me what the delegate had in mind was G’s claim that he and his family were illegal residents in Iran. Why no weight was placed on the vaccination cards for other purposes is more troubling. The delegate’s conclusion that the vaccination cards do not contain “any information” about the childrens’ place of birth is problematic. Each of the vaccination card identifies the child’s date of birth. True it is that a place of birth is not expressly specified. However, the vaccination cards list the vaccines administered to each of the children at a particular provincial health centre in Iran. They set out the dates upon which those vaccinations were administered at that health centre. In the case of the eldest child the vaccination card shows that he was first administered a vaccination at the health centre in Iran on the same day as he was born. In relation to the younger son, the vaccination card shows that a vaccine was first administered 30 days after the child’s date of birth. In each case, the information on the card provided some information in support of the conclusion that the child was likely to have been born in Iran. In the case of the older child and on the information provided on the vaccination card, a finding that he was born in Iran is an almost irresistable conclusion. However, whilst it is clear that the delegate wrongly evaluated the content of the evidence before her, it does not follow that G’s refusal decision was legally unreasonable as G contended.
208 Another finding challenged by G relates to his school records from Iran. In relation to the records, the Reasons say this:
When asked as to whether he had any school records, he advised that he didn't have any. Given he confirmed that he was given results every few months, I find it would be reasonable for him to attempt to contact the school and confirm whether they are able to provide him with any records of his attendance or school results.
209 G contended that during his interview with the delegate, whilst he was asked whether he had records from his school, he was not asked to comment or make submissions on whether it was reasonable for him to attempt to obtain copies of those records (G’s twelfth contention).
210 Read in context, it seems to me that the delegate regarded G’s failure to have attempted (rather than his failure to now attempt) to obtain school records as a consideration adverse to the approval of G’s application for citizenship. The basis for the delegate concluding that G had made no attempt is unclear. There may have been no basis at all. G was not asked if he had made any attempt and nor was he asked about his willingness to make an attempt to obtain the school records. But whether the delegate’s finding was made in the absence of any foundation is not in question. The question raised here is whether G had been sufficiently on notice that his failure to obtain his school records, or provide an explanation as to his efforts to have done so, was a matter in issue. The letter of 6 July 2016 included “school records” as one of the categories of documents G was requested to obtain. The letter also requested that if G was unable to provide the documents that he provide an explanation as to what attempts had been made to obtain them. That letter sufficiently put G on notice that his attempts to obtain the school records was an issue which may lead to an adverse conclusion being made against him. That only 6 days had passed since a request of that kind was first made (ie a request for documents from a country of prior residence), may well have explained why no attempt had been made if that was in fact the case. However, there was no denial of procedural fairness in relation to the finding in question.
211 The delegate accepted that G was married and that it may not have been possible for him to obtain documentation at the time of the marriage. In coming to that conclusion, the delegate said this:
I take into consideration on [Mrs G’s] application for Global Special Humanitarian visa (subclass 202), she indicated that she is 'married legally' even though there are other options to declare that would appear to be aligned with [G’s] claim regarding their marriage; including 'Married by tradition/custom' and also 'Married religiously'.
212 That observation was the subject of G’s thirteenth contention. G contended that this issue was not mentioned at all during the interview and he was not asked to make any comment or submission on the matter. I accept that to be so. However, whilst the observation made by the delegate is curious in the context of the matter then under consideration, I am not satisfied that it led to any adverse conclusion being drawn by the delegate. A practical injustice is neither raised nor established by this contention.
213 Finally, G raised two contentions that a breach of procedural fairness occurred in relation to the delegate’s conclusion that “little weight” ought to be placed on an Afghan passport issued to G (G’s fourteenth contention) and an Afghan passport issued to G’s wife (G fifteenth contention). Each passport was produced by G to the delegate.
214 After stating that the Afghan passport issued to G was issued on 12 January 2011 in Canberra, the delegate identified her concern about the issuing procedures involved in obtaining that passport in the following observations made in her Reasons:
[G] stated that he obtained the passport by travelling in person to the Afghan Embassy in Canberra where he provided a signed statement and was interviewed by officials in the office. He advised that he also took two (2) witnesses; a person by the name of [H…H…] who was known to his father and another person whose name he could not recall, who was the son of his father's friend.
I find no reason to believe the document is not a genuine Afghan passport, however, I take into consideration [G]’s explanation of the processes he went through to obtain the document and in particular, the fact that he was not able to recall the name of one of the witnesses, who he claims was the son of his father's friend. I take into consideration that this person was a very important component of his ability to obtain an Afghan passport and his inability to recall his name, or the name of the witness' father who he claims was his father's friend, brings me to question the issuing processes in relation to obtaining the Afghan passport.
215 The delegate relied upon G’s inability to recall the name of one of the witnesses used to identify G in obtaining the Afghan passport. In the interview, G was asked to name the witnesses that he took with him to obtain the passport. He provided the name of one of the witnesses but could only provide the first name of the other. He explained that the second witness was the son of a friend of his father and that his father’s friend sent his son along rather than come himself. G also said that the son was much younger than he was. He said he could find the full name and phone number of the witness. A generous but fair reading of the delegate’s Reasons suggests to me that what the delegate was saying was that, for the purposes of providing proof of G’s identity, G’s Afghan passport was not reliable. The delegate was concerned that a person whose connection to G was so remote that G could not remember his name was relied upon by the Afghan authorities to identify G as part of the process used to confer a passport.
216 That issue, the reliability of G’s passport for proof of identity, was canvassed by the delegate with G. It would have been sufficiently apparent to G that the reliability of his Afghan passport was put in issue by the nature of the questions asked in the context of the answers that he gave. In my view, G was given sufficient notice that the reliability of his passport was in issue and an opportunity to be heard as to that issue was not denied to him.
217 In relation to the passport issued to G’s wife, the delegate’s concern about the process for obtaining that passport was set out in the Reasons as follows:
Furthermore, I also take into consideration [G]’s explanation during interview that he made arrangements to obtain his wife's Afghan passport by paying someone $US3,000 and sending them a copy of his Afghan passport together with photographs. It was noted that the passport was issued in Kabul and [G] confirmed that this was correct and that his wife remained in Iran and did not present in person in order to obtain the passport. I also take into consideration that when [G] was asked to confirm whether he believed the document to be genuine, given he paid a significant sum of money to obtain it, he responded that he believed it was a genuine document and also made reference to the fact that in Afghanistan everything is possible if you have money.
218 The delegate did not expressly raise a concern about the validity of the process utilized to obtain G’s wife’s passport, however, the discussion about the unusual way in which the passport was obtained would have made it apparent to G that the reliability of that passport to establish his wife’s identity was being put in issue. To my mind G was sufficiently put on notice that the reliability of his wife’s passport was an issue that may be determined adversely to his interests. He was not denied an opportunity to be heard as to that issue.
219 I have upheld G’s first and second contentions and found that G was denied procedural fairness in relation to the delegate’s non-satisfaction that G was of good character. I have not otherwise upheld any assertion of error in relation to that non-satisfaction. In relation to the delegate’s non-satisfaction as to G’s identity, I have upheld G’s fifth, sixth, seventh and tenth contentions and found G was denied procedural fairness. I have not otherwise upheld any of G’s challenges to the delegate’s non-satisfaction in relation to G’s identity.
220 The Minister contended, and I accept, that G’s refusal decision could only be set aside if error is found in each of the relevant states of non-satisfaction arrived at by the delegate. If either state of non-satisfaction survived G’s challenges, the refusal decision must stand because where there is non-satisfaction as to either identity or character, s 24 of the Act proscribes the approval of a citizenship application.
221 The Minister also raised discretionary considerations in support of his contention that relief should be refused. I will turn to consider those shortly.
222 The Minister did not contend that relief should be refused based upon the rule in Stead at 145, where the High Court stated that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”, but explained that relief may only be refused if the Court is satisfied that the denial of natural justice “could have had no bearing on the outcome”. In Ucar, following a comprehensive survey of the authorities, Redlich JA (with whom Warren CJ and Chernov JA relevantly agreed) stated (footnotes omitted):
In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.
223 As to the first circumstance contemplated by Stead and referred to by Redlich JA, there is no incontrovertible fact or point of law which provides a discrete basis for G’s refusal decision which is not affected by the procedural unfairness which I have found. As for the second circumstance contemplated in Stead, it was for the Minister to demonstrate that it would be futile to set aside G’s refusal decision because on a reconsideration, the result would inevitably be the same (as to that onus see also Hayne J in CSR Limited v Della Maddalena (2006) 80 ALJR 458 at ).
224 In any event, and putting aside questions of onus, as McHugh J said in Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at  (in a passage later referred to by the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 117 at ), “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome”. Where the issue is whether additional evidence and submissions could have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile: VAAD at  citing Kirby J in NAFF at . It will be “no easy task” (Stead at 145) to satisfy a court that a denial of natural justice could have had no bearing on the outcome.
225 Whilst I recognise that the delegate may well have come to the same conclusion on the question of G’s character or his identity if those opportunities to respond which I have found should have been given were given, I cannot say with certainty that affording those opportunities would have been futile. There is, therefore, no warrant for relief to be refused by reason of the rule in Stead.
226 For the same reasons that I concluded that F’s refusal decision was, at law, to be regarded as no decision at all, I hold that G’s refusal decision was no decision at all.
Should the proceedings be dismissed on discretionary grounds?
227 In relation to each of F’s and G’s proceedings, the Minister contended that the proceedings should be dismissed on discretionary grounds. The first ground relied upon was that there was no longer any utility in the proceeding. In each case F and G have applied to the Court for an order directing the Minister to make a decision on his citizenship application. As a decision has been made, the Minister contended that each of F and G had obtained the relief which he had sought and that there was otherwise no utility in the proceedings given that the only other relief sought was a bare declaration.
228 There is no issue that the Court has the capacity to dismiss each of the proceedings on discretionary grounds. Putting to one side for the moment the issue whether the declaratory relief sought by each of F and G would have utility, the Minister’s first ground for the exercise of the Court’s discretion must be rejected because it is premised on the fact that the refusal decisions were made, whereas, as I have held, each of those decisions lack legal foundation and are properly to be regarded, in law, as no decision at all.
229 I turn then to the second ground relied upon by the Minister for the exercise of the Court’s discretion. The Minister contended that the relief of a kind sought by each of F and G should, save in exceptional circumstances, be withheld on discretionary grounds where other suitable remedies are available and have not been used. In this respect, the Minister points to two circumstances. The first is that each of F and G are not precluded from making a further application for citizenship. Second, each of F and G had the capacity to apply to the AAT for a full merits review of their refusal decision. In those circumstances, the Minister contended that it was not necessary or desirable to consider the legal efficacy of the refusal decisions. The Minister relied upon the provision of merits review by the Act as indicative of Parliament’s intent that the usual manner in which a person might seek to challenge a decision under s 24(1) is via review by the AAT. Further, the Minister contended that the present proceedings had not clearly identified any question of jurisdiction or power that could be decided without significant fact finding and were inappropriate for adjudication by the Court. Lastly, the Minister disputed the contention that merits review would involve greater cost or delay.
230 I note at the outset that s 10(2)(b)(ii) of the ADJR Act relevantly provides the Court with a broad discretion to refuse to grant an application made in reliance upon either ss 5 or 7 of the ADJR Act for the reason:
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
231 The onus of persuading the Court to exercise its discretion under s 10(2)(b) falls on the person seeking it: Convery v Ziino (1985) 70 ALR 383 at 387 (Neaves J); Hagedorn v Department of Social Security  FCA 1028 at 18 (Mansfield J).
232 Where another law makes “adequate provision” for review, an applicant who commences judicial review proceedings under the ADJR Act does not have to establish “special circumstances” to avoid dismissal of the application pursuant to s 10(2)(b)(ii); the provision requires the Court to consider and weigh all relevant circumstances: Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1 at  (Tracey, Griffiths and Mortimer JJ). As Mansfield J observed at 18–19 of Hagedorn in relation to s 10(2), as with any judicial discretion, it is neither possible nor desirable to list all of the factors which may be relevant to the exercise of the discretion, as the relevant factors and the weight to be accorded to them will vary from case to case depending on the particular circumstances of the case. With that qualification and speaking generally, Mansfield J regarded delay, expense, hardship, and whether, despite adequate alternative review procedures, there is involved a matter of law appropriate for determination by the Court, as being likely to be factors of relevance. His Honour also noted that it will also be relevant to have regard to the need for the Court to resolve matters before it where no other avenue for recourse is available.
233 With those observations in mind, I turn to consider the particular circumstance of the two cases here in question, bearing in mind also that in the ordinary case where a refusal decision was made pursuant to s 24(1) of the Act, there would be force in the submission that the Court should exercise its discretion to refuse relief. That would be so because adequate provision is made by s 52(1)(b) of the Act for a merits review before the AAT. But these were not ordinary cases and the circumstances which take them out of the ordinary need to be recounted and considered.
234 These proceedings began as applications which only sought relief in relation to the Minister’s delay in dealing with the citizenship applications. For applications of that kind, neither s 52 nor any other provision to which I was referred, provides an entitlement to seek review or redress in the AAT or any other fora. Given the terms of s 10(2)(b) of the ADJR Act, upon the institution of the proceedings there was no basis for the exercise of the discretion conferred by that provision and, assuming a residual discretion is provided by s 16(1), no occasion for the Court to have exercised a discretion to dismiss the proceeding. The same may be said now about the relief sought in reliance upon s 7(1) of the ADJR Act. The relief sought, and that which I propose to grant, is not relief that could be granted by the AAT.
235 True it is that when the refusal decisions were made, F and G had the capacity to seek review of those decisions before the AAT. But by that time the proceedings in this Court were well progressed. A substantial part of the evidence had been prepared and filed. A number of interlocutory disputes had been heard and resolved. Written submissions, although filed shortly after the refusal decisions were made, must have been at a late stage of preparation. An early date for a hearing of the applications (28 July 2016) had been secured.
236 It was reasonable in those peculiar circumstances for each of F and G to have chosen to agitate their challenge to the refusal decisions in this Court as part of their existing application. They had secured an early hearing date in this Court and could only speculate as to when a hearing date before the AAT might become available to them in circumstances where, for them, time is of the essence. They had already invested a great deal of time, effort and resources in these proceedings (as had the Minister), some of which would have to have been replicated if new proceedings were instituted elsewhere. Additionally, and in my view importantly, they would have foregone the opportunity to have their complaints about the Minister’s delay vindicated. That was their entitlement, if they were right about the delay. Their only means of achieving that outcome was through their proceedings in this Court. In circumstances where they had not secured citizenship there was utility to them in obtaining the declarations they seek in relation to the Minister’s unreasonable delay. There was obvious economy to all parties, in the challenges to the delays and the challenges to the refusal decisions being dealt with together in a single proceeding.
237 Given those circumstances, the Minister has failed to persuade me that I should exercise my discretion to refuse F and G the relief to which they are entitled. I should add that, in arriving at that view, I have given no weight to the Minister’s reliance upon the capacity of F and G to make another application for citizenship. That facility is not “a review” of the kind contemplated by s 10(2)(b)(ii). Just as the facility for a further application does not deny an applicant an entitlement to a review by the AAT, an applicant ought not be denied judicial review in circumstances where it is otherwise appropriate.
238 Having held that the refusal decisions were invalid and, at law, no decisions at all, and having rejected the Minister’s submission that I should refuse relief on discretionary grounds, it is necessary that I now consider the appropriate form of relief.
239 Each of F and G seek an order that the refusal decision made in his case be set aside. I will make orders to that effect. Each also seeks a declaration that there has been unreasonable delay by the Minister in making a decision under s 24(1) of the Act to approve or to refuse to approve his citizenship application. There is utility in making declarations to that effect and I will do so.
240 Lastly, each of F and G seek an order directing the Minister to make a decision under s 24(1) to approve or to refuse to approve his citizenship application. I intend to make orders to that effect but consider that the timeframe within which those decisions are to be made should be specified in the orders I make. As the parties have not made submissions on that question, or on the question of costs, I will hear the parties before determining the orders of the Court.