FEDERAL COURT OF AUSTRALIA

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207

ORDERS

THE COURT ORDERS THAT:

1.    The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs be substituted as the proper respondent.

2.    The application is dismissed.

3.    The applicant pay the respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant is an Afghan national who arrived in Australia as an unauthorised maritime arrival in 2013. He was aged 27 at the time.

2    The applicant was granted a temporary visa and lived in the community until September 2015, when he was arrested on criminal charges and his temporary visa was cancelled.

3    On 25 September 2015 the applicant was convicted in the Local Court of New South Wales of one count of breaching an apprehended violence order and two counts of common assault, and sentenced to 10 months imprisonment on each count. The offences were of the nature of domestic violence.

4    The applicant was released from prison to the custody of the Department on 9 December 2015 and has been in immigration detention since that time.

5    The applicant applied for a safe haven enterprise visa in August 2016. Although a delegate of the then relevant Minister (Minister Dutton) refused to grant the visa, that decision was set aside by the Administrative Appeals Tribunal on 12 October 2017. The Department then referred that decision to Minister Dutton for consideration as to whether he wished to exercise his powers under s 501A of the Migration Act 1958 (Cth) (Act).

6    Minister Coleman (sworn in on 28 August 2018) exercised his power to set aside the Tribunal's decision and refused to grant the applicant's visa. That decision was made on 18 April 2019.

7    At the heart of this application is a complaint as to the time taken by the Minister to make that decision. The applicant relies on alleged inactivity during a period between September 2018 and February 2019 and contends that inactivity occasioned unreasonable delay such that the Minister no longer had the power to refuse to grant the visa, and his decision should be quashed. That was the only ground of review pursued on this application.

8    Because of the nature of the applicant's argument, it is necessary to set out the chronology of events in some detail. The chronology is based on the documents before the Court by way of a tender bundle, but also takes into account the evidence of Ms Sally Pfeiffer. Ms Pfeiffer swore two affidavits for the purpose of the application and was also cross-examined.

9    Ms Pfeifer has been employed at the Department of Home Affairs and formerly the Department of Immigration and Border Protection since December 2007 (I will refer to the applicable department as the Department, its correct title at any particular time being apparent from the context). Ms Pfeiffer is currently Assistant Secretary of the Humanitarian Program Capability Branch. From February 2019 until 28 May 2019 she was the Assistant Secretary of the Character and Cancellation Branch (CCB), which is responsible for processing identified or referred cases for assessment under the character cancellation or refusal provisions in s 501 of the Act. Ms Pfeiffer had access to and perused the Department's electronic files relevant to the applicant's s 501(1) case as well as the Parliamentary Document Management System (PDMS) entry relevant to the s 501A submission to the Minister.

10    Ms Pfeiffer gave evidence that for the purposes of decisions that the Minister may make personally under s 501A of the Act, her responsibilities included managing a team of officers who draft and develop submissions. Those officers research and review information provided to them. Ms Pfeiffer supervised their activities and reviewed all documents before they were submitted to the Minister's office. Her other major role was engagement with the Minister's office on a regular basis about cases and ensuring that they were progressed and actioned. Ms Pfeiffer was the last point of review in the CCB before matters were sent to the Minister. She said that the Minister also has an advisor who specifically manages such cases.

Chronology

11    In August 2016 the applicant applied for a safe haven enterprise visa. On 18 November 2016 a delegate of the Minister decided that the applicant faced a real risk of significant harm if he was returned to Afghanistan, but the applicant's visa application was referred for character consideration under s 501. In February 2017 the applicant was issued with a Notice of Intention to Consider Refusal and invited to provide a response. After requesting and receiving an extension of time, he responded through his representative. In July 2017 a delegate of the Minister refused to grant the visa.

12    The applicant sought review of that decision from the Administrative Appeals Tribunal. On 12 October 2017 the Tribunal set aside the delegate's decision to refuse the visa. It published reasons on 8 November 2017. In summary, the Tribunal did not consider the applicant posed a risk of reoffending or engaging in serious conduct in the future. Further, it considered the Australian community would not assume the applicant would reoffend, would have regard to the fact that the applicant had served his sentence and has been held in detention since that time, and would be accepting of providing the applicant with an opportunity to stay in Australia on a limited stay visa.

13    On 26 October 2017 the applicant referred the Tribunal remittal letters to the Department.

14    Within the Department the Tribunal decision came to the attention of the 'Complex and Controversial Cases' branch of the CCB which on or about 7 November 2017 provided a submission to Minister Dutton's office to seek an indication as to whether he wished to exercise his personal power under s 501A(2) of the Act to set aside the Tribunal's decision and substitute his own decision. A copy of the redacted submission was before the Court.

15    It is convenient at this point to set out s 501A:

Refusal or cancellation of visa - setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

   (a)    a delegate of the Minister; or

   (b)    the Administrative Appeals Tribunal;

   makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister - natural justice applies

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister - natural justice does not apply

(3)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister's exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

Note 1: For notification of decisions under subsection (2), see section 501G.

Note 2: For notification of decisions under subsection (3), see section 501C.

16    On 5 December 2017, Minister Dutton indicated that he wanted to personally consider the applicant's case.

17    On 6 December 2017, the applicant's representative requested an update as to whether the remittal had been processed, a request which was repeated on 21 December 2017.

18    On 28 December 2017, the Department's National Character Consideration Centre (NCCC) informed the representative by email that the processing of the applicant's case remained ongoing. By email of 3 January 2018 the representative was also informed by the Humanitarian Program Operations Branch that the applicant's visa application was being considered following the Tribunal's decision.

19    On 16 January 2018 the applicant's case was allocated a case officer within the NCCC to issue a Notice of Intention to Consider Refusal and to in due course prepare a s 501A submission.

20    On 26 March 2018, the Department sent the applicant's then representative a Notice of Intention to Consider Refusal of the applicant's visa application under s 501A(2).

21    On 23 April 2018, the applicant's representative responded to the Notice of Intention to Consider Refusal, providing written submissions and supporting documents.

22    On 21 June 2018, the Federal Court delivered judgment in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. According to Ms Pfeiffer, the NCCC was required to consider the impact of this decision on the affected caseload, which included the applicant's case.

23    I interpose to note that whilst coincidentally AQM18 addressed a question of delay (as discussed further below), the aspect of the decision of interest to the Department and Minister at that time was that part that dealt with whether the Minister in that case understood the legal consequences as to whether the applicant in that case would be re-fouled under s 198 of the Act in breach of Australia's non-refoulement obligations. The decision on that issue was overturned by the Full Court on 22 February 2019 in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 (AQM18 appeal).

24    On 15 August 2018 (according to the particulars of the application) an NCCC officer emailed the applicant's representative indicating that he or she anticipated forwarding a submission to the Minister 'by early next week'.

25    However, on 24 August 2018 and after a leadership challenge, Mr Scott Morrison replaced Mr Malcolm Turnbull as Prime Minister of Australia. Mr David Coleman was then sworn in as the Minister for Immigration, Citizenship and Multicultural Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), and assumed responsibility for consideration of cases such as the applicant's.

26    As the exercise of power under s 501A is personal to the Minister, following Minister Coleman's appointment the CCB engaged in a process of consulting and drafting revised referral arrangements for Tribunal cases that were referred to the Minister's office for consideration of the exercise of his personal powers.

27    Further, after Minister Coleman was appointed, all submissions that had been forwarded to Minister Dutton were returned to the Department to be re-edited before they were considered by Minister Coleman personally. Ms Pfeiffer said that all of the submissions, including the applicant's, were reviewed to update information and consider any new information concerning the health, welfare and status of the applicants, as it was necessary to ensure the document was current before it was resubmitted.

28    On 3 September 2018 the proposed submission to the Minister was completed by the Department and assigned to the NCCC director for clearance.

29    Ms Pfeiffer was not able to identify all drafting changes made to the submission between when it was prepared (after receipt of the submission and information from the applicant) and 3 September 2018. However, she was able to compare two versions of the submission, dated 9 July 2018 and 17 December 2018 respectively. On that basis she was able to say that the s 501A submission was substantially prepared by the NCCC case officer by 9 July 2018, but was not finalised. By comparing the drafts, she was able to say that changes were made to the submission after 9 July 2018 that addressed the decision in AQM18 relating to the interpretation of s 198 of the Act and Australia's non-refoulement obligations.

30    On 17 December 2018, a submission proposing a revised referral arrangement was sent to the office of Minister Coleman.

31    On 3 January 2019, the applicant commenced this proceeding in the Federal Court. By that date no decision had been made by the Minister and the relief originally sought by the applicant included an order that the Minister make a decision to grant or refuse the applicant's protection visa within two weeks.

32    On 13 February 2019, the NCCC sent its brief in relation to the applicant to the Minister's office.

33    On 19 February 2019 the Minister informed the NCCC that he wanted to personally consider the applicant's case.

34    On 20 February 2019, the s 501A submission was assigned to Ms Pfeiffer for review and clearance. Ms Pfeiffer cleared the submission the following day and it was assigned to the Minister's office.

35    Ministerial Direction 79 (given by Minister Coleman) came into effect on 28 February 2019.

36    As the submission to the Minister relating to the applicant had not been finally addressed by the Minister prior to Direction 79 coming into effect, it was returned to the NCCC for consideration. This was done on 1 March 2019.

37    On 5 March 2019 the Department wrote to the applicant, inviting him to comment on Direction 79. The letter included, relevantly, the following information:

On 28 February 2019, Direction 65 was revoked and replaced by new Ministerial Direction 79 (Direction 79).

You should now use Direction 79 in place of Direction 65. A copy of Direction 79 is enclosed.

The changes to Direction 79 are primarily to emphasise that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed.

The Minister is not bound by Direction 79 although it provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether to refuse your visa application.

It is important that you read Direction 79 carefully as it may be relevant to any response you provide. To assist you, please note that Part B of Direction 79 identifies the considerations relevant to delegates deciding whether to exercise the discretion to refuse a non-citizen's visa application. You should address each paragraph in PART B of Direction 79 that is relevant to your circumstances.

Invitation to comment

Before the decision-maker considers whether or not to refuse your visa, you have an opportunity to comment or provide information on whether the decision-maker should exercise his or her discretion to refuse your visa application.

38    I note that in light of the reference in Direction 79 to crimes of violence against women and children and the nature of the applicant's offences, it is not surprising that this step was taken.

39    The applicant provided additional letters of support to the NCCC in response, the last being provided on 18 March 2019.

40    On 21 March 2019, the submission was again assigned to Ms Pfeiffer. It appears from a PDMS extract that Ms Pfeiffer was informed that the matter required priority. On 8 April 2019 it was cleared and assigned to Minister Coleman's office.

41    On 18 April 2019, the Minister refused to grant the applicant a visa under s 501A(2), and on 23 April 2019 the applicant was notified of the Minister's decision.

Period of alleged inactivity relied upon

42    In summary it took from November 2017, when Minister Dutton's office was first contacted with respect to the Tribunal's decision, until April 2019 for a Minister to make a decision to set aside the Tribunal's decision. During that time a social worker had prepared a report to the effect that the prolonged detention was causing the applicant's mental health to deteriorate. A copy of the report formed part of the applicant's submission to the NCCC of 23 April 2018.

43    That time period of approximately 18 months provides context to the particular complaint. There are objectively some key matters to note that led to delay with respect to the applicant's case: the delivery of a relevant decision by this Court that required consideration; the appointment of a new Prime Minister and a new Minister with the immigration portfolio; the return of submissions that had been before Minister Dutton to the Department; the need to consider and put in place a regime in accordance with the new Minister's requirements for such applications; and the publication of Direction 79 (which does not bind the Minister but to which it is apparent that the Minister has regard).

44    The applicant does not rely on inactivity over the whole of that period as evidencing unreasonable delay. His complaint is that there was inactivity between 3 September 2018 and 19 February 2019.

45    Ms Pfeiffer was cross-examined as to the facilitation of a preferred regime for the preparation of submissions upon Minister Coleman's appointment. She said that the review process in fact led to a different regime. Previously, there was a particular process in place for Minister Dutton, including a process as to the documents and level of information that was required. Matters for consideration included whether or not all cases from the Tribunal where there was a non-adverse decision were to be referred to the Minister for consideration or whether there was to be a triaging of cases. When Minister Coleman was sworn in in it was necessary to interact with Minister Coleman's office to ascertain how the new Minister wished to have matters referred. As it happened, changes were implemented for Minister Coleman. For example, Minister Coleman's office initiated a different process for receipt of briefs, in that his office accepted a brief outlining the case before requiring a full submission to be provided. The Minister's office would than make a decision as to whether the Minister required a full submission (in the end that change did not of itself require further work with respect to the applicant's case, as a submission had already been drafted).

46    Ms Pfeiffer said that there was no standard processing time for such applications, in contrast to the position with respect to other visa matters. Ms Pfeiffer explained that the reason that there is no standard processing time for s 501A matters is that the applications are complex in nature and the outcome of such decisions has a significant impact on people's lives:

… so we look to expedite them wherever we can but we need to provide the due process and make sure that we are fully cognisant of all the information that's relevant to be making the decision before we put up a case to the Minister. So we take the responsibility very seriously noting the consequences of the outcomes of these decisions.

47    Ms Pfeiffer indicated that at the time that she was in the role described, there were usually about 10 applications of a s 501A nature being considered by the Minister.

AQM18

48    The argument relied upon by the applicant as to delay was that raised in AQM18 and the AQM18 appeal.

49    In AQM18, in March 2017 the Minister gave notice to the applicant that he was considering setting aside the Tribunal's decision. The applicant made representations in April 2017. On 9 January 2018 the Minister exercised the power under s 501A(2) to set aside the decision of the Tribunal and refuse the application for a protection visa, a time period of some 10 months. In this case the time period between the corresponding steps was 13 months: March 2018 to April 2019.

50    The primary judge rejected an argument that the Minister's decision under s 501A(2) was made without jurisdiction because the purported exercise of power occurred outside a reasonable time. Although the applicant was successful on other grounds, she appealed the rejection of the delay ground. She sought a declaration on appeal that the Minister no longer had the power to make a decision under s 501A(2) because the time in which such a decision could lawfully be made had expired.

51    The Full Court noted the following:

[30]    The appellant submitted to the primary judge, and maintained before this Court on appeal, that the case law supported the following propositions which were summarised by the primary judge at J[59]:

(a)    A delay which is not satisfactorily explained is to be regarded as unreasonable: BMF16 at [27] (citing various authorities). This means the onus will be on the decision-maker to provide a reasonable explanation for a delay: BMF16 at [28].

(b)    What is a 'reasonable time' is objectively determined: Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation (2001) 106 FCR 203 (Bidjara) at [28].

(c)    In assessing the bounds of a 'reasonable time', the legislative context is informative: BMF16 at [25]; Bidjara at [28]-[31]. Thus, if the statutory purpose of the power is for 'prophylactic' protection of the public, 'there should be as little delay as possible': Kardas v Australian Securities Commission (1998) 53 ALD 303 at 313. In BMF16, this was explained in terms of 'the importance of [the exercise of the power] both to the public and to the interests of the persons it is directed to address': BMF16 at [25].

(d)    Relatedly, the 'likely prejudicial impact upon interest-holders of any delay' is important: BMF16 at [25] and [29]. Thus, it was significant in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (Wei) at 477 that the delay caused the affected persons to become illegal entrants.

(e)    Prejudice is especially significant where delay affects the fundamental right to liberty; statutes are to be construed to give maximum effect to that fundamental right unless there is clear legislative intent to the contrary: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532. See also Coco v R (1994) 179 CLR 427 at 437.

(f)    Administrative convenience does not factor into what is a 'reasonable time': Commonwealth v Fernando (2012) 200 FCR 1 at [91]. Similarly, a lack of resourcing does not make a delay reasonable: Wei at 477.

(g)    The consequence of a decision being made after the expiry of the 'reasonable time' limit is that it is out of time, beyond the power of the decision-maker, and therefore invalid: Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573-574.

[31]    His Honour did not expressly deal with each of the propositions set out above, said to emerge from the case law. He did however, consistently with a concession made by the Minister, accept at J[61] that, 'as a principle of statutory construction, where no time limit is prescribed for the doing of a particular act, a court may imply a requirement that the act be done within a reasonable time', citing Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573-574.

[32]    His Honour also set out at J[61] the test for determining whether a reasonable time limit has been exceeded, namely that set out in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292:

… [W]hether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.

[33]    The primary judge concluded that the delay was not unreasonable.

52    Before the Full Court the Minister sought to rely on a notice of contention that included a proposed contention in the following terms:

The judgment of the Court below … should be affirmed on the additional basis that there is no duty to exercise power under s 501A(2) of the Migration Act 1958 (Cth) within a reasonable time.

53    The Full Court did not determine the question, stating:

[36]    It is not necessary to consider the matters raised by the proposed notice of contention or each of the propositions which the appellant submitted emerge from the cases as set out at paragraph [30] above. That is because it was not established that there was a failure to exercise the power under s 501A(2) within a reasonable time, assuming there to be such a duty.

54    Relevant facts in AQM18 included:

(a)    for a period of some seven months, the Department was addressing the reasons in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576, reasons which affected a small cohort of cases including the applicant's, and which was delivered on 3 May 2017;

(b)    the Department recalled the submission that had previously been provided (the 'white folder submission') from 'Ministerial Support' in order to update the submissions following DMH16;

(c)    after it was returned, the white folder submission was again recalled from the Minister's office and it was evident that the reason was that in light of DMH16 certain wording with respect to the issue raised by the decision was being cleared within the Department's office;

(d)    the submission for decision was forwarded to the Minister on 5 December 2017; and

(e)    during that time the appellant attempted suicide.

55    The Full Court in AQM18 also recorded the primary judge's reliance on the return of the submission to the Department as being 'consistent with careful consideration being given to the issues raised by the case'. It agreed with the primary judge that other relevant matters included that it was not to the point that the material had previously been considered by the Tribunal and a delegate of the Minister, taking into account that the Minister was required to bring an independent mind to consideration of whether to exercise his discretion under s 501A(2), and also had to consider whether it was in the national interest, a criterion that did not apply to the Tribunal.

56    Whilst not deciding the question of whether it is implied into the statutory discretion or power under s 501A that it must be exercised with a reasonable time, the Full Court had regard to the nature of the power and the impact of it on the appellant.

57    The Full Court cited the following extract from BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530:

[25]    Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.

58    It said the following of the power under s 501A:

[66]    The power is one vested personally in the Minister and can be exercised in limited circumstances. In particular, if the Minister 'reasonably suspects' a person does not pass the character test and the person 'does not satisfy' the Minister that he or she does, then the Minister may refuse (or cancel) the visa only if he is satisfied that it is in the national interest. The power requires natural justice to be afforded and this requires time sufficient to afford it (on the facts here, until 13 April 2017). The power is one directly connected to considerations of national interest. This might involve complex questions not susceptible of speedy resolution or considerations which affect a series of particular cases. Decisions under s 501A(2) affect individuals, but the power to make such decisions - involving as it does broad questions of national interest - is quite different to the power to make decisions concerned with purely private or commercial matters. It is a power which should be exercised after careful consideration given its potential impact on both national interest and the relevant individual.

[67]    It was not established that there were lengthy periods of unexplained inactivity which demanded any further explanation than was able to be inferred from the course of events. It was regrettable that the decision took as long as it did, especially in light of the appellant's psychological state, but explicable in light of the events described above, including the perceived need to consider what position to adopt in respect of matters seen to be affected by the decision in DMH16.

59    The question of whether there was an obligation on the Minister to exercise his power under s 501BA of the Act within a reasonable time frame arose on appeal but was not determined in DOB18 v Minister for Home Affairs [2019] FCAFC 63. In that case there was a delay of 16½ months between the date of the Tribunal's decision and the applicant being informed of the Minister's decision. Because unreasonable delay had not been raised before the primary judge, and because the issue raised factual matters that may have been addressed by evidence from the Minister had it been raised, leave to pursue the ground of appeal was refused.

60    Regardless, Robertson J set out in his reasons the respective arguments: see DOB18 at [151]-[163]. It is not necessary to repeat them, save to note that the Minister contended that the appellant was unable to establish that the exercise of the discretionary power in s 501BA(2) was conditioned by a requirement that it be performed within a reasonable time.

61    The applicant in this matter made submissions analogous to and consistent with those summarised in AQM18 and included above at [51].

62    In addition, during the hearing counsel for the applicant developed a submission that the exercise of power under s 501A is but part of the power of a Minister to grant or refuse to grant a visa under s 65. Counsel referred to the duty to exercise the power to grant a visa if the criteria of s 65 are met and submitted that the consideration of whether to exercise power under s 501A is 'but one step in the visa application process' and so subject to 'the same duty that the Minister has in deciding any visa application to [exercise power] reasonably and [make a decision] within a reasonable time'. Counsel said s 501A was 'merely the last power in a long line of powers to refuse to grant the visa for character reasons'. The applicant referred to Shahi v Minister for Immigration and Citizenship [2011] HCA 52; (2011) 246 CLR 163 at [28].

63    As to relief, the applicant submits that the failure to comply with the implied condition to make a decision within a reasonable time means that any decision eventually made is beyond the Minister's power and therefore invalid. The applicant submits that although the delay did not deprive the applicant of a successful outcome, it falls within an exception recognised in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [40] and [72] in that the delay demonstrated a lack of respect for the dignity of the applicant as an individual in circumstances where the applicant was in detention with deteriorating mental health. The applicant therefore seeks a writ of prohibition against the Minister or a declaration that the Minister's decision was invalid, with the result, it is contended, that the Tribunal's decision must stand.

64    The Minister's submissions can be summarised as follows:

(a)    the applicant can point to no authority in support of its proposition as to inferring a time constraint on the Minister;

(b)    whether the power in s 501A(2) is subject to exercise within a reasonable period is a question of statutory construction;

(c)    there is nothing in the text, or context, of s 501A that would permit the Court to infer a legislative intention that the Minister may only exercise the power under s 501A(2) within a certain period of time. To that end, to the extent the applicant relies upon the authority of the High Court in Koon Wing Lau v Calwell (1949) 80 CLR 533 in support of the broad proposition that all decisions required under statute, absent a specified time limit, are to be made within a reasonable time, the reliance is misplaced;

(d)    the principle from Koon Wing Lau may apply in respect of statutory obligations or duties, but it does not follow that it applies to any and every statutory power. Consideration ultimately must be given to the statutory power in question;

(e)    for instance, it may be readily accepted that it is implicit in the Act that the Minister promptly consider (and not unreasonably delay in considering) a valid application for a visa other than a protection visa (eg, Shahi v Minister for Immigration and Citizenship at [28]): that is because s 65 imposes a duty on the Minister to consider a valid application for a visa;

(f)    similarly, in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [102] Gageler J referred to the duty of the Migration Review Tribunal to conduct a review of a decision, and that it occur within what, in all the circumstances, is a reasonable time: see also Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 at [37]; Giddings v Australian Information Commissioner [2017] FCA 677 at [26]; and CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [313], [376];

(g)    by way of contradistinction, s 501A(2) provides the Minister with a non-compellable power exercisable only by the Minister personally: s 501A(5). The Minister does not have a duty to consider the exercise of that power, whether or not he is requested to do so or in any other circumstances: s 501A(6). Indeed, the Full Court of this Court has described the power as ensuring that 'the Minister is free to exercise the power or not as he chooses': Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 at [107];

(h)    having regard to the nature of the statutory power in question, it would be inimical to the clear purpose and intent of the non-compellable power if the Court were to infer that its exercise were subject to an implied time limitation;

(i)    indefinite detention of itself is no reason to infer that the power must be exercised within a reasonable time. It must be kept in mind that under the Act there are many and varied options open to the Minister to take various courses and for an applicant to pursue such courses: for example, it may be possible depending on the circumstances to grant a particular visa to relinquish someone from immigration detention whilst the process is being undertaken. It is not the case that simply because someone is in detention and that there is a long drawn out process concerning a visa application that a person must indefinitely be detained for the duration of that process: there is a suite of powers available to be exercised in appropriate cases;

(j)    as to the applicant's submission based on s 65, whilst one can readily accept that s 501A(2) might be seen as part of a step in a process of a visa application, it is a standalone discretionary and non-compellable power that has a protective purpose, to ensure that persons who the Minister is satisfied satisfy particular criteria, including criteria relating to the national interest, should have their visa refused notwithstanding other matters that have supported the grant of a visa;

(k)    it is important to remember the distinction between particular statutory powers being exercised or being required to be exercised within a reasonable time: the authorities that address that question concerned statutory duties or obligations and not merely discretionary powers;

(l)    the applicant has not established a recognised basis for relief: there is no basis for an order of mandamus (as a decision was in fact made in this case); the applicant's contention that upon breach of the asserted obligation to exercise power the Minister's power lapses ignores the lack of a statutory timeframe for the exercise of the power (in contrast to that considered in Koon Wing Lau); BMF16 is not authority to the contrary because in that case the Court was concerned with the citizenship approval regime and his Honour found for reasons unrelated to delay that the Minister's refusal decision were invalid and 'no decision at all' (at [226]); and the applicant has not established how delay would have materially affected the outcome of the Minister's decision (relying on Hossain).

Consideration

65    It is important to note that there is no authority that has yet determined the question of whether the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time.

66    The respective arguments have been formulated and pursued in both AQM18 and DOB18, but as yet there has not been a factual scenario where the Court has been obliged to determine this question. Those arguments were further developed somewhat before me. Both counsel had given the question close attention which is why I have attempted to reflect the nature of the respective submissions in some detail.

67    However, having considered carefully the evidence in this matter, I do not consider this is a matter where the question arises properly for determination. Even if there were such duty, there was no real issue between the parties as to the test for determining whether there has been unreasonable delay. The applicant referred to BMF16 at [27]. Bromberg J in that decision cites, amongst other cases, Thornton v Repatriation Commission (1981) 52 FLR 285 at 292 and relies upon the same passage relied upon by the Minister:

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity.

68    This test was approved by the Full Court of this Court in ASP15 v Commonwealth of Australia [2016] FCAFC 145; (2016) 248 FCR 372 at [21].

69    Further, there was no real dispute as to the factual matters that were relevant to whether any delay was unreasonable, and for the reasons given below, in this case the facts do not reveal that there had been unreasonable delay on the part of Minister Dutton or Minister Coleman.

70    Accordingly I follow the approach of the Full Court in AQM18.

71    I would note, however, having regard to the emphasis placed on s 65 by the applicant, that except for intervening factors referred to in s 65(1)(a)(iii), some of which are discretionary, the decision to grant or refuse to grant a visa is not otherwise discretionary. If a valid application is made and the conditions and criteria are met, the Minister must grant the visa. Section 65(1)(a)(iii) lists a number of intervening factors, including the circumstances addressed by s 500A and s 501. It does not expressly refer to s 501A. However, the applicant accepted that s 501A would fall within the ambit of the words 'or any other provision of this Act' contained in the provision, a position that seems uncontroversial having regard to the inclusion of other provisions concerning refusal or cancellation of visas on character grounds. The particular power to refuse to grant a visa referred to in s 501A(2)(a) must be addressed carefully and having regard to its discretionary nature. Authorities that address the duties of the Minister in the exercise of mandatory powers will not necessarily assist in assessing the duties of the Minister in the particular context of s 501A(2).

72    I now turn to the reasons why in my view, whilst the process for this applicant has without doubt been a long one, the period involved has been explained and no unreasonable delay on the part of the Minister has been established.

Consideration - the period September 2018 - February 2019

73    Based on the chronology recorded above, it is apparent that the submission initially provided to Minister Dutton relating to the applicant was returned to the Department after Minister Coleman was appointed on 28 August 2018, along with other submissions relating to Tribunal decisions that were before Minister Dutton at the time.

74    Following Minister Coleman's appointment there was liaison between the CCB and the new Minister's office as to the regime that the Minister might wish to implement for relevant Tribunal decisions.

75    A recommendation (or submission) for a revised referral arrangement was made by the CCB and provided to the Minister on 17 December 2018. It follows that the liaison and recommendation process took some months. Whilst the nature of Minister Coleman's workload during this period was not addressed by the evidence it can be assumed safely that the new Minister had many other matters to address during that time in addition to his preferred regime for s 501A(2) matters and that his workload encompassed tasks beyond dealing with only the ten (or so) other matters of that nature that were before him at the time. One clear example of other tasks is reflected in the substance of Direction 79, given by Minister Coleman in February 2019. The applicant asserted that dealing with the ten (or so) s 501A matters was hardly an onerous workload, but that submission does not take into account the Minister's portfolio as a whole.

76    The time apparently taken to settle on an agreed regime is to be viewed against the fact that the power is vested in the Minister personally, it is a significant power to wield, and it is directly connected to the consideration of the national interest. I do not find a period of some months for that process, if undertaken properly with a new Minister, to be so long as to be unreasonable. As identified by the Full Court in the AQM18 appeal at [66], considerations of the national interest might involve complex questions and it would have been necessary to have regard to issues of national interest that may have to be addressed by the Minister, not just in the case of the applicant, but more generally.

77    As counsel for the Minister submitted, it is not surprising that significant bureaucratic work might be involved in the briefing of a Minister to ensure that the Minister has all relevant information to make the decision, to ensure that procedural fairness is afforded to an applicant and to ensure that the applicant has the opportunity to provide all the information that he or she wishes to provide. Any new regime needed to provide for such matters to the satisfaction of the new Minister.

78    As it happens, the pre-existing regime was not replicated by the new Minister but rather different processes were put in place. That supports an inference that Minister Coleman's office gave some consideration to the relevant issues, and did not simply adopt the processes put in place by or for Minister Dutton.

79    It is not clear whether the 17 December 2018 regime proposal was accepted by the Minister without further changes or communications, but regardless, the submission relating to the applicant was provided to Minister Coleman on 13 February 2019 and so the new regime was prima facie agreed by that time and was being implemented.

80    From the time of Minster Coleman's appointment the NCCC also updated and checked the submission that had been prepared earlier for Minister Dutton and returned, a task that Ms Pfeiffer said was undertaken with respect to all applications that had been returned from Minister Dutton's office.

81    Counsel for the Minister also referred to the fact that the Christmas/New Year period may well have also made an impact on workflow during the December 2018/January 2019 period. Common experience suggests that to be the case, but it is not a matter to which I give any particular regard.

82    Although it occurred outside the particular time period of alleged inactivity on the part of the Minister, the applicant also submitted that there was no need for the Minister to further defer his decision by inviting the applicant to address Direction 79, as the direction does not bind the Minister. However, taking into account the nature of the applicant's offences, it is unsurprising that the Minister sought to accord procedural fairness by expressly inviting a response, an invitation accepted by the applicant. Further, the Direction confirms the Minister's policy for the department for which he is responsible. The applicant was entitled to expect that the Minister would have regard to the Direction if considering an application personally: see DOB18 at [66].

83    The applicant also submitted that the decision in AQM18 was not complex and would not have required particular attention. I do not agree. The fact that it was the subject of a successful appeal indicates that its substance required some consideration. It is to be recalled that the Department had regard to AQM18 not just with respect to the applicant's case but also a cohort of affected cases.

84    As was the case in AQM18, it is regrettable that the time for the Minister to make a decision under s 501A(2) took as long as it did, particularly having regard to the applicant's ongoing detention and the report from the social worker as to his mental health.

85    Whilst I have had particular regard to the specific period of delay complained of, I have also taken into account the overarching chronology of events in this matter.

86    Treatment of the applicant's case coincided with some unusual events (as summarised at [43] above). Their accumulation led to delays that have been explained adequately by the Minister. The time taken was explicable having regard to those events. There were no lengthy periods of unexplained inactivity. There is no indication that the Minister or the officers of his Department acted with neglect, oversight or perversity towards the applicant's case.

87    In the circumstances I am not satisfied that the making of the decision by the Minister was attended by unreasonable delay.

88    It follows that the application is dismissed with costs.

Associate:

Dated:    5 August 2019