Federal Court of Australia

DFE16 v Minister for Home Affairs [2021] FCA 1151

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the respondent’s costs of this proceeding as taxed or agreed.

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

REASONS FOR JUDGMENT

NICHOLAS J:

Introduction

1    This proceeding was commenced by the applicant on 25 May 2021 seeking relief under s 39B of the Judiciary Act 1903 (Cth). By orders made on 17 June 2021, this proceeding and a related proceeding originally commenced by the applicant in the Federal Circuit Court of Australia (“the FCCA”) on 31 May 2021 were consolidated.

2    The applicant alleges that the respondent (“the Minister”) failed to make a decision with respect to the applicant’s application for a protection visa dated 13 May 2020 (“the protection visa application”) under ss 47 and 65 of the Migration Act 1958 (Cth) (“the Act”) within a reasonable time. The applicant seeks a declaration to that effect. The applicant also seeks a writ of mandamus requiring the respondent to proceed forthwith to consider and determine his protection visa application.

Factual Background

3    The applicant claims to have been born in Afghanistan and to be of Hazara ethnicity. He first arrived in Australia in 2008 as a holder of a Partner (Provisional) (Class UF) (Subclass 309) visa (“the Subclass 309 visa”).

4    On 17 June 2013 the Australian Security Intelligence Organisation (“ASIO”) issued the applicant with an adverse security assessment (“ASA”). It appears that the ASA was based on ASIO investigations which were said to indicate that the applicant had been involved in people smuggling operations. It also appears that the applicant denied that he was involved in any such activity.

5    A truncated and unclassified summary of the ASA states that the applicant was born in Afghanistan, that he is of Hazara ethnicity, and that he resided in Pakistan before relocating to Australia. According to the summary, ASIO assessed that the applicant had been involved in an extensive Indonesian based people smuggling syndicate that had targeted Australia. The summary also records that the applicant denied being involved in people smuggling activities when interviewed. The summary shows that ASIO assessed that the applicant would continue to engage in people smuggling activities targeting Australia and that on that basis he was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth).

6    On 19 June 2013 the applicant’s Subclass 309 visa was cancelled and he was taken into immigration detention.

7    On 4 March 2015, the High Court dismissed an appeal brought by the applicant from a judgment of the Full Federal Court dismissing his application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the ASA.

8    On 1 May 2015 the applicant applied for a protection visa. On 15 June 2016 a Delegate of the Minister refused the applicant’s protection visa application. On 21 September 2016 the Delegate’s decision was affirmed by the Tribunal. Proceedings brought in the FCCA seeking judicial review of the Tribunal’s decision were unsuccessful at first instance and on appeal to this Court.

9    On 14 November 2019 the applicant filed a proceeding in the High Court seeking constitutional or other relief in relation to the legality of his detention. At that time the applicant had been in detention for approximately six years. On 10 March 2020 a single judge of the High Court dismissed the applicant’s application.

10    On 8 May 2020 the Minister invited the applicant to make a further application for a protection visa after the Minister made a determination under s 48B of the Act. The applicant lodged a further application for a protection visa on 13 May 2020. It is this visa application that is the subject of this proceeding.

11    A statutory declaration made by the applicant on 12 May 2020 in support of his application for a protection visa states that his mother and siblings fled Afghanistan after his father disappeared sometime between approximately 1995 and 1999 and that they made their way to Pakistan where they settled illegally. According to the statutory declaration, it is very common for Hazaras from Afghanistan to live in Pakistan illegally. In the same statutory declaration the applicant states that he has no right to return to Pakistan because he is not a Pakistani citizen and does not have a Pakistani passport.

12    Once the applicant had lodged his visa application, his case was referred to ASIO for a further security assessment. It is not clear from the evidence on what date this referral occurred. It was not suggested to any witness that the ASIO assessment was the subject of any unreasonable delay. Nor was there any evidence to indicate how long, in the ordinary course of events, it would take ASIO to complete such an assessment.

13    On 10 September 2020 the Minister requested that the applicant attend a protection interview on 15 and 17 September 2020. The applicant was interviewed by video-link from Sydney by an officer (Mr Andrew Pettinger) of the Department of Home Affairs (“the Department”). The applicant’s solicitor and migration agent (Ms Alison Battisson) was also present with Mr Pettinger in Sydney. Both Ms Battisson and Mr Pettinger gave evidence in this proceeding in relation to the interview and other matters about which I will say more later in these reasons.

14    On 18 September 2020 Ms Battisson provided further information to Mr Pettinger. This information included records relating to the applicant released by the Australian Federal Police in response to a Freedom of Information request. The documents produced by the Australian Federal Police indicated that the applicant was a person of interest involved in allegations of people smuggling but that, on or about 8 November 2013, the investigation was finalised apparently due to what was described as a “lack of evidence”.

15    On 1 October 2020 Ms Battisson provided the Department with a list of the current medications that the applicant was taking and two mental health reports. On 7 December 2020 Mr Pettinger contacted Ms Battisson asking whether the applicant had any further submissions he wished to make. Shortly afterwards the applicant forwarded to Mr Pettinger copies of information obtained from the Australian Federal Police in response to a Freedom of Information request, Ms Battisson noted that the respondent should have already have copies of those documents. It has not been suggested that the contents of that response is of any significance to the issues to be decided in this proceeding.

16    On 13 October 2020 an officer of the National Allocations and Finalisations section of the Department wrote to the applicant advising him that ASIO had requested that the applicant participate in an interview for the purpose of allowing ASIO to undertake a security assessment in respect of the applicant’s suitability to hold an Australian visa. The interview was originally scheduled to take place on 19 November, but was rescheduled and instead was held on 26 November 2020. Ms Battisson also attended the interview via telephone.

17    According to Ms Battisson’s oral evidence, which I accept, the interview lasted for approximately 2 hours and no questions were asked about the applicant’s nationality, the possibility of him being a Pakistani national, or the possibility of him having a right to enter and reside in Pakistan. Ms Battisson’s evidence also indicates, as is also apparent from the documentary evidence, that the applicant’s mother and one of his brothers live in Pakistan.

18    Ms Battisson’s oral evidence was admitted provisionally after counsel for the Minister objected to it essentially on the basis that it was not relevant to any issue in the proceeding. I admit the evidence unconditionally but, in doing so, I accept that her oral evidence is of little assistance in deciding whether there has been unreasonable delay in the consideration of the protection visa application.

19    On 19 February 2021 Ms Battisson sent an email to Mr Pettinger seeking an update in relation to the protection visa application. In his response dated 22 February 2021 Mr Pettinger noted that the case was complex and that he was continuing to work through the application.

20    On 5 May 2021 Ms Battisson sent a further email to Mr Pettinger drawing attention to the delay which she said was “becoming unreasonable and could be the subject of a Federal Court action”. She asked Mr Pettinger whether he could advise when the decision would be made. She does not appear to have received any further communication from Mr Pettinger except for a brief telephone conversation on 13 May 2021 when Mr Pettinger informed Ms Battisson that the applicant’s visa application was now being managed by another officer of the Department.

21    Mr Pettinger was a witness called by the applicant under a subpoena issued by the Court. He did not make an affidavit and was not asked any questions by counsel for the Minister. In answer to questions from counsel for the applicant Mr Pettinger said that his involvement in the assessment of the visa application may have commenced in about July 2020 (he was not sure) but that it ended on the last working day of February 2021 after he took up a different position in the Department.

22    Counsel for the applicant questioned Mr Pettinger in relation to his involvement in the assessment of the visa application including in relation to the interview conducted on 15 and 17 September 2020. It was put to Mr Pettinger that he was comfortably satisfied about the applicant’s receiving country for the purposes of processing his visa application as at 17 September 2020. He did not accept that. He said that there was still more research to do.

23    Mr Pettinger said that after he actually started his research he came to the view that there was a good possibility that the passport used by the applicant to enter Australia had been fraudulently obtained. However, he agreed that he did not take any steps to refer the passport to the document examination unit of the Department as in his view such an assessment was not necessary in this case. Instead, his evidence was that it was possible that the passport was a genuine passport that was fraudulently obtained using false information. Ms Turner in her evidence indicated that, in those circumstances, documents would not usually be referred to a specialist examination team as their role is limited to assessing the document itself to see if it is genuine, and does not extend to assessing whether it was obtained based on false information.

24    Mr Pettinger gave evidence that, in his experience, a large number of Hazaras from Afghanistan live in Pakistan, particularly in the city of Quetta, which is where the applicant appears to have resided. He said there are other Hazaras in Quetta who are not from Afghanistan and are in fact Pakistani citizens. Although Mr Pettinger appears to have accepted that the applicant was a Hazara, he did not consider ethnicity was necessarily an answer to the question of nationality. He agreed that it is common for Afghan born Hazaras to live illegally in Pakistan and neighbouring countries.

25    Mr Pettinger accepted that as at 17 September 2020 there was nothing to suggest that the applicant was a citizen of Pakistan by the laws of that country. However, he also said that he found the applicant’s claims in relation to his movement between Afghanistan and Pakistan where the applicant claimed to have lived “without documents” to be implausible, that he was not sure that the applicant was who he claims to be, and that he considered there was a possibility that the applicant was in fact a Pakistani. Mr Pettinger accepted that, to his mind, it was more likely than not that the applicant was an Afghan rather than a Pakistani.

26    On 13 May 2021 another officer of the Department (Ms Sharika Patel) sent an email to Ms Battisson advising that the applicant’s application had “… been allocated to [her] for progression and remains under active consideration”. Ms Patel added that while she was unable to provide a date as to when the decision will be made on the application, she wished to assure Ms Battisson that the application was “being managed and progressed”.

27    ASIO’s Qualified Security Assessment (“QSA”) was issued on 26 May 2021. It assessed that the applicant was not a risk to security and that it would be consistent with the requirements of security for the applicant to hold a protection visa. It also stated that ASIO did not recommend that the visa application be refused.

28    A copy of the QSA was forwarded by an officer of the Security Assessment Liaison and Analysis (“SALA”), another section of the Department, by email to Ms Kimberly Turner and other departmental officers on 27 May 2021. Relevantly, the email from SALA stated:

ASIO assesses [the applicant] is not directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act) and that it would be consistent with the requirements of security for [the applicant] to hold a Protection (XA866) subclass visa.

This assessment supersedes the Adverse Security Assessment (ASA) which was signed on 17 June 2013.

Next Steps/Considerations

•    Whilst the client now meets the section 36(1B) security requirements associated with the protection visa, there is further information contained in the QSA Statement of Grounds (SoG) which may impact on broader visa considerations. SALA will make the QSA SoG available for viewing to appropriately cleared officers with the need to know. Please notify SALA once relevant officers are ready to review the QSA SoG.

•    ASIO has not issued Home Affairs with an unclassified version of the SoG. Further to this, ASIO is not required to issue an unclassified version of the SOG to the client or to Home Affairs.

…

29    I will return to the question of the offer of access to the QSA Statement of Grounds and difficulties that have arisen in arranging for appropriately cleared offices of the Department to be given access to that document. It is sufficient to say at this point that ASIO will ordinarily only make the Statement of Grounds available to appropriately cleared officers at a secure facility in Canberra.

30    It is not clear from the evidence when Ms Battisson or the applicant first became aware that ASIO had issued the QSA. The QSA and the SALA email to which I have referred do not appear to have been produced to the applicant’s legal representatives until shortly prior to the hearing. However, on 25 June 2021 the Minister filed an affidavit of Ms Sally Pfeiffer, an Assistant Secretary of the Department, which referred to the QSA.

31    Ms Turner reported to Ms Pfeiffer at all relevant times up to approximately 20 August 2021. On that date, Ms Pfeiffer was temporarily moved to manage requests for emergency humanitarian visas in Afghanistan. In her affidavit made on 25 June 2021, Ms Pfeiffer says that departmental officers were currently undergoing the appropriate clearance process to be able to review the QSA which I take to mean the QSA Statement of Grounds. According to Ms Pfeiffer’s evidence, if the information contained in the Statement of Grounds opens up additional lines of enquiry, it may then be necessary to arrange a further interview with the applicant. She also says that while the applicant now satisfies the requirements of s 36(1B) of the Act, no protection obligations assessment has been completed in relation to the applicant at this stage of the decision-making process. She also says that is she unable to give any indication as to how long it will take to complete the process.

32    In her affidavit Ms Pfeiffer says that it was her understanding that up until the time the QSA was furnished to the Department, the ASA issued on 17 June 2013 remained in effect and, consequently, the applicant could not have met the requirements of s 36(1B) of the Act. Her understanding in relation to these matters accords with my own interpretation of the relevant provisions. The significance of this for the purposes of the present proceeding is that it should be accepted that the Minister could never have granted the applicant the protection visa he sought prior to 27 May 2021.

33    Ms Turner’s evidence was that she had doubts concerning the applicant’s nationality and that these need to be investigated further in light of any additional information contained in the QSA Statement of Grounds.

34    In her affidavit made on 2 September 2021 Ms Turner provided further information in relation to steps that must be taken before a departmental officer can view the Statement of Grounds, these include being granted an appropriate security clearance, and a requirement that departmental officers attend specialist briefings. In her experience, for national security reasons, such briefings have always been conducted in person in Canberra which is where the Statement of Grounds is physically stored. She says that due to the highly sensitive nature of the information, there are limitations on the circulation of such material by electronic means. The limitations surrounding access to the Statement of Grounds necessitate travel by departmental officers with the necessary security clearance between Sydney and Canberra where they may undertake the relevant briefing before reviewing the Statement of Grounds. Generally this process can be completed over the course of a single day, with officers travelling from Sydney to Canberra receiving the required briefing and then viewing the Statement of Grounds later that day.

35    In her affidavit Ms Turner also says that she considers there is a potential that the applicant is a Pakistani citizen and, if that is so, it would affect the assessment of his protection visa. She also said that due to ongoing concerns about the applicant’s nationality and the advice received from SALA, she considered it necessary for an appropriately qualified officer and, ideally, the decision-maker to view the Statement of Grounds to determine whether it contains further information which may assist in assessing the applicant’s identity and his claim for protection, including whether the applicant is an Afghan or Pakistani citizen.

36    Ms Patel is trained as a protection visa decision-maker. She also holds relevant delegations to allow her to make a decision in this matter. As a matter of practice and policy if the assessment were to find that protection obligations were owed in respect of the applicant, the case would be handed to other officers in a different section of the Department for subsequent security and character checks. Assuming these criteria are met, the visa would then be granted by another decision-maker in that area. Ms Patel is based in Sydney. Her supervisor, Ms Smart, is also based in Sydney. Ms Turner is the direct supervisor of Ms Smart.

37    In her affidavit Ms Turner refers to the restrictions imposed in New South Wales under various orders (“the NSW Directions”) made under s 7 of the Public Health Act 2010 (NSW) in response to the most recent COVID-19 outbreak. The effect of the relevant order was to prevent any resident of Greater Sydney leaving their home from 26 June 2021 unless they had a reasonable excuse to do so. Various questions were put to Ms Turner in relation to her understanding of the effect of the relevant order, including whether it would be possible for Ms Smart and Ms Patel to depart Greater Sydney for work related reasons from 26 June 2021. Ms Turner’s understanding was that as at 26 June 2021 while it was possible for departmental officers to travel from Sydney to Canberra, such travel was not recommended by the NSW Premier and that the officers would need a “very good reason” to depart Greater Sydney.

38    In her affidavit Ms Turner also refers to the Public Health (COVID-19 Affected Areas) Emergency Direction 2021(No 10) (“the ACT Directions”) which were made under s 120 of the Public Health Act 1997 (ACT) and which came into effect at 11.59pm on 9 July 2021 and remain in force. The ACT Directions allowed the Chief Health Officer of the ACT to identify an area or a place as a “COVID-19 affected area”. Under the ACT Directions, a person who has been in a Covid affected area is an “affected person” and since the ACT Directions came into effect “Greater Sydney” has been such an area. One consequence is that Ms Patel and Ms Smart have been unable to enter the ACT from 9 July 2021 without first obtaining an exemption under cl 12 of the ACT Directions. Even with such an exemption, cl 14(a) of the ACT Directions would require them to undertake a period of quarantine for 14 days from arrival.

39    On or around 30 June 2021 Ms Turner started to make enquiries about whether a security briefing could be done remotely or whether ACT based staff could travel to Sydney so as to allow Ms Patel and Ms Smart to receive the security briefing in Sydney. Both Ms Patel and Ms Smart hold the necessary security clearance and have been approved to undertake the security briefing.

40    These enquiries included discussions with the Assistant Director of Protection Assessment NSW, who is a member of the Senior Executive of the Department and responsible for all Department staff in Sydney. She also made enquiries of the Department in Canberra to determine whether a staff member based in Canberra could travel to Sydney for the purposes of providing the briefing. She was told that due to the Covid-19 lockdown restrictions and quarantine requirements this was not considered practical and it was suggested that she explore the possibility of using local ASIO resources to enable the briefing to take place in Sydney. She had discussions in relation to that possibility but was told the secure facilities at which such a briefing could take place were the subject of restricted operations due to the Covid-19 outbreak including restrictions on the total number of people who could be present in those facilities. She was informed that it would not be possible to use ASIO’s facilities while Covid-19 restrictions were in place in Sydney.

41    Having formed the view that it would not be practical for the briefings to take place in Sydney while Covid-19 restrictions were in place, Ms Turner then sought approval to enable Ms Smart and Ms Patel to travel to Canberra.

42    In early July 2021 Ms Turner prepared a business case to seek authority permitting Ms Patel and Ms Smart to travel to Canberra. The evidence indicates that the business plan first needs to be approved by Ms Pfeiffer and a First Assistant Secretary before being submitted to a Deputy Secretary of the Department for final approval. Relevant to obtaining that approval was an official travel protocol dated 15 April 2021 entitled “The Covid-19 Taskforce Protocol 9” (“the Protocol”). The Protocol stated that “[d]omestic (inter and intrastate) and overseas travel must not be undertaken unless the travel is deemed operationally critical”. At the time Ms Turner submitted the business case to Ms Pfeiffer, sometime in early to mid-July, she understood it would be necessary to seek exemptions to allow Ms Smart and Ms Patel to enter Canberra and that they would need to quarantine there for 14 days. It appears that Ms Pfeiffer was unwilling to approve the business case. When Ms Turner discussed the business case with Ms Pfeiffer she was advised by Ms Pfeiffer that it would be better to wait until the health restrictions lifted.

43    According to Ms Turner, in around mid-August 2021, when it became clear that the lockdown in Sydney would extend until September 2021, she concluded it was unlikely that Sydney based officers would be able to attend Canberra in the near future. She then explored the possibility of making arrangements for officers in Canberra with the necessary security clearance and experience in making protection visa assessments to view the QSA Statement of Grounds. Neither of the officers with the relevant security clearance and experience has undertaken the security briefing which would enable them to view the QSA Statement of Grounds. In her affidavit Ms Turner says she is making arrangements for one of those officers to attend the security briefing.

44    According to Ms Turner, once the QSA Statement of Grounds has been reviewed by an appropriate person, there may need to be a further interview of the applicant. She also says that she considered the decision would be able to be made on whether the refugee and complementary protection criteria were met by the applicant in a matter of days after any further interview. However, even if the relevant decision-maker was satisfied that these criteria were met, it would then be necessary to consider any health, character or security concerns including whether the visa ought be refused under ss 36(1B), 36(1C) or 501 of the Act. As outlined above, these matters are considered by a different section of the Department.

The relevant statutory provisions

45    Section 36 of the Act relevantly provides:

36    Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

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

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

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

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

Note:    For paragraph (b), see section 5M.

…

    Protection obligations

(3)    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

…

    Determining nationality

(6)    For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7)    Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

46    Section 5 of the Act defines “receiving country” (referred to in s 36(2)(aa)) as follows:

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)    if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

47    Section 47 of the Act provides:

47    Consideration of valid visa application

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

   (a)    the application is withdrawn; or

   (b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

48    Section 65(1) of the Act also provides:

65    Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

Note 1:    Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.

…

Section 65(1) requires the Minister to notify the applicant of the decision to grant or refuse to grant a visa.

49    Also relevant is s 501(1) of the Act which provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The “character test” is defined in s 501(6).

Grounds of application

50    The applicant’s amended originating application filed on 6 September 2021 specifies the relief sought and the grounds on which the applicant relies. As previously mentioned, the relief sought includes a declaration that the Minister failed to make a decision within a reasonable time.

51    The particulars provided in support of the applicant’s contention that the Minister failed to make a decision within a reasonable time refer to the applicant’s arrival in Australia in 2008 on the Subclass 309 visa, and the cancellation of that visa after ASIO issued an ASA.

52    The particulars also refer to the litigation between the applicant and the Director-General of Security, the application for a protection visa made by the applicant in 2015, the decision of the Tribunal affirming the Delegate’s decision to refuse that application, and the litigation in this Court in relation to that refusal. Reference is also made in the particulars to the proceedings brought by the applicant in the High Court in 2019 in relation to his detention.

53    After referring to the visa application lodged on 8 May 2020, the particulars recount the history of the application through to 13 May 2021, noting that no decision had been made by the Minister or his Delegate in relation to the visa application.

54    Further particulars that were introduced into the originating application by the amendment made on 6 September 2021 are as follows:

Receiving country – s.5(1) of the Act

(xxiii)    The sole receiving country against which the Applicant’s first protection visa application was assessed was Afghanistan.

(xxiv)    In affirming the decision to refuse the Applicant’s first protection visa application on 21 September 2016, the Tribunal accepted that the Applicant was a citizen of Afghanistan and assessed his application by reference only to Afghanistan.

(xxv)    Prior to 2 September 2021, the Respondent had not put the Applicant on notice that there were unresolved concerns about the receiving country against which his second Protection visa application was to be assessed.

(xxvi)    Concerns about the Applicant being a potential citizen of Pakistan as opposed to Afghanistan were raised by the Respondent for the first time in the affidavit of Kimberley Turner dated 2 September 2021.

(xxvii)    The Respondent did not, at any point between 15 May 2020 and 2 September 2021 seek information from the Applicant about whether he held Pakistani citizenship pursuant to s.56 of the Act.

(xxviii)    The Respondent did not, at any point between 15 May 2020 and 2 September 2021 give particulars of its concerns to the Applicant for his comment under s.57 of the Act.

(xxix)    To the extent that it may be a reason, or part of the reason, for refusing the Applicant’s protection visa application under s.36(3) of the Act, the information in the material referred to at [14.1] and [14.2] of Kimberley Turner’s affidavit constituted ‘relevant information’ for the purposes of s.57(1) of the Act as the information contained in the material referred to in those paragraphs:

a)    were specifically about the Applicant; and

b)    had not been provided by the Applicant in relation to the second Protection visa application.

(xxx)    It is not open to the Respondent to rely on its own lack of communication with the Applicant and its own non-compliance with provisions of the Act in justifying the delay in finalising the Applicant’s visa application.

Delays in obtaining clearances to view the Statement of Grounds for the Qualified Security Assessment (QSA)

(xxxi)    On 27 May 2021 ASIO issued a QSA in respect of the Applicant.

(xxxii)    On 1 June 2021 the Respondent sought a two-week adjournment of the proceedings before this Court with the consent of the Applicant in order to enable it to consider the contents of the QSA.

(xxxiii)    The delays in making arrangements for decision makers to obtain the relevant clearances to access the Statement of Grounds for the QSA were not reasonable in the circumstances because:

a)    between 26 June 2021 to 9 July 2021 residents of New South Wales (NSW) were permitted under the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW) to leave their place of residence in NSW for work, where that work cannot not be performed at home;

b)    between 26 June 2021 to 9 July 2021 there were no restrictions on entry to the Australian Capital Territory (ACT);

c)    While the ACT Public Health (COVID-19 Affected Areas) Emergency Direction 2021(No 10) required non-residents entering the ACT after 11:59pm on 9 July 2021 to obtain an exemption and to quarantine for 14 days on arrival, the respondent gave no consideration to undertaking this course of action.

d)    the terms of the Department of Home Affairs’ COVID-19 Taskforce Protocol (the Protocol) did not prevent the travel of NSW-based Departmental officers to the ACT in circumstances where travel was ‘operationally critical’.

e)    No consideration was given by the Respondent in relation to whether travel by its officers from NSW to the ACT for the purpose of obtaining the relevant clearances to view the Statement of Grounds for the QSA was operationally critical.

f)    The Protocol is a matter of internal Departmental policy and does not have the force of law.

g)    It would have been reasonable in all the circumstances for the Respondent to have caused its officers to travel from NSW to the ACT prior to 9 July 2021, when entry from NSW into the ACT was unrestricted.

h)    Further and in the alternative to (g) above, it would have been reasonable in all the circumstances for the Respondent to have caused its officers to travel from NSW to the ACT after 9 July 2021, notwithstanding the requirement to obtain an exemption and to quarantine on arrival for 14 days.

The Parties’ Submissions

55    Counsel for the Minister accepted that the Minister was under a duty to consider the applicant’s application for a protection visa, to decide whether to grant or refuse a visa, and to perform that duty within a reasonable time. He submitted that what is a reasonable time is to be ascertained “having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act”: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [37] per Crennan, Bell, Gageler and Keane JJ.

56    Counsel for the Minister also accepted that the test for determining whether a “reasonable time” for making an administrative decision has been exceeded is “whether there are circumstances which a reasonable man might consider render this delay justified and not capricious” rather than “a delay for a considered reason and not in consequence of neglect, oversight or perversity”: ASP15 v Commonwealth of Australia (2016) 248 FCR 372 at [21]-[23] quoting Thornton v Repatriation Commission (1981) 52 FLR 285 at 292.

57    In written submissions filed prior to the commencement of the hearing, the applicant submitted that concerns regarding the applicant’s nationality were “a recent invention” that had been deployed by the Minister to explain delay in finalisation of the applicant’s protection visa application. However, that submission was ultimately not pressed. Counsel for the applicant acknowledged that Mr Pettinger had given evidence as to his doubts as to the applicant’s nationality. She ultimately submitted that there was no reasonable basis for those doubts and, even if there was, the Minister has had ample opportunity to resolve them.

58    Counsel for the applicant referred to the matters which are said by Mr Pettinger and Ms Turner to give rise to doubts as to the applicant’s nationality and submitted that they relate to the time the applicant spent in Turkey before travelling to Australia. The evidence of both witnesses suggested that it was common for Pakistani nationals to procure either forged Afghan passports or genuine Afghan passports that were fraudulently obtained. The suggestion that their evidence plainly conveys is that the applicant may not have been not born in Afghanistan, that he was born in Pakistan, and that he therefore may be a Pakistani national.

59    Counsel for the applicant submitted that the Department had been in possession of a copy of the applicant’s Afghan passport since 2010 when a certified copy of the document was provided to the Department. It was submitted that the Department has therefore had many years in which to investigate the genuineness of the passport. She also referred to the decision of the Tribunal made on 21 September 2016 affirming the Delegate’s decision not to grant the applicant a protection visa. In the Tribunal’s reasons it is noted that the applicant is a citizen of Afghanistan, a Shia muslin and of Hazara ethnicity and that nothing appears in the reasons to suggest that there was any doubt as to the applicant’s nationality. This is also true of the reasons for judgment given in the various proceedings between the applicant and the Minister in relation to both his first protection visa application and the legality of his detention.

60    Counsel for the applicant also submitted that by the time this proceeding was commenced on 25 May 2021, there have been unreasonable delay by the Minister in making a decision on the protection visa application. She drew attention to what she described as enquiries made by Ms Battisson at reasonable intervals which were said to have received either no response or no meaningful response from the Department. She also drew attention to the date of the issue of the QSA and the fact that this proceeding had been commenced the previous day. However, she did not submit that the issue of the QSA on 26 May 2021 was a consequence of the applicant having commenced this proceeding.

61    Counsel for the applicant also submitted that, assuming the Court was to find that there was a legitimate need or reason for the relevant officers of the Department to view the QSA Statement of Grounds, the delay in making appropriate arrangements to view the document was not reasonable in all the circumstances. She submitted there was no restriction on any person entering the Australian Capital Territory (“ACT”) until around midnight on 9 July 2021 and that it was open to Ms Patel (or another officer of the Department) to travel from Sydney to Canberra between 27 May 2021 (when the QSA was received by the Department) and 9 July 2021. Counsel also pointed to evidence to show that the relevant security briefing could have been undertaken by Ms Patel and Ms Smart in Canberra on the same day (but prior to) accessing the Statement of Grounds, meaning that the duration of such a trip would likely be confined to a single day.

62    Counsel for the applicant also submitted that it was open to Ms Patel and Ms Smart to have travelled to Canberra any time after 9 July 2021 by obtaining travel exemptions and then quarantining for the requisite 14 days before attending the security briefing, accessing the Statement of Grounds, and then travelling back to Sydney. Counsel accepted that this would necessarily involve Ms Turner obtaining the necessary approval from her superiors (including Ms Pfeiffer and a Deputy Secretary) to enable this to occur, Ms Patel and Ms Smart obtaining the necessary travel exemptions, and them being willing to quarantine in Canberra for 14 days from the time of their arrival.

63    Counsel for the applicant submitted that the reasons given by Ms Turner for delays in arranging for either Ms Patel, Ms Smart or an ACT based officer to undergo the relevant security briefing and to then view the QSA Statement of Grounds were not reasonable. She referred to five matters that were said to support that submission.

64    First, the QSA was furnished to the Minister on 27 May 2021 and that this proceeding was adjourned by consent for two weeks at the Minister’s request to enable him to consider his position in light of that document. However, Ms Patel and Ms Smart were not endorsed to undertake the security briefing until 24 June 2021. It was submitted that the Minister has not proffered any clear evidence to explain the delay in seeking that endorsement.

65    Second, despite the existence of the NSW Directions, Ms Patel and Ms Smart were at all times after 24 June 2021 permitted to leave their places of residence for work in circumstances where it was not reasonably practicable for them to work at their place of residence. Between 26 June 2021 and 9 July 2021, there were no restrictions on Ms Patel or Ms Smart entering the ACT under the ACT Directions, which did not come into effect until midnight on 9 July 2021. It was submitted that neither the NSW Directions nor the ACT Directions prevented Ms Patel and Ms Smart from travelling to Canberra between 24 June 2021 and 9 July 2021.

66    Third, it was submitted that although Ms Patel and Ms Smart were required to obtain an exemption before travelling to the ACT and quarantining for two weeks on arrival from 9 July 2021, no consideration appears to have been given to the possibility of them doing so. It was submitted that from 9 July 2021 it would have been reasonable for the Department to obtain exemptions for Ms Patel and Ms Smart to travel to the ACT and for them to quarantine for two weeks on arrival.

67    Fourth, counsel for the applicant submitted that the Department’s COVID-19 protocol did not prevent Ms Patel and Ms Smart from undertaking travel from New South Wales to the ACT for the purpose of the security briefing. It was submitted that the term “operationally critical”, as used in the Protocol, was not defined and that the Court should find that the need for Ms Patel and Ms Smart to travel to the ACT was “operationally critical”.

68    Fifth, it was submitted by counsel for the applicant that Ms Turner’s evidence concerning the availability of the ACT based officers to undertake the briefing in place of Ms Patel and Ms Smart was vague and should be given little weight. Further, it was unclear why the ACT based officers could not have been engaged sooner to undertake the briefing in the weeks leading up to the hearing and that the delay in making arrangements for an ACT based officer to undergo the security briefing was unreasonable and not adequately explained.

Consideration

69    Authorities show that it is for the applicant to establish that there has been unreasonable delay in, in this case, either performing the duty to consider under s 47 or performing the duty to make a decision under s 65 of the Act. The test for determining whether there has been a failure to perform either duty depends on:

… 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 a consequence of neglect, oversight or perversity.

See Thornton v Repatriation Commission (1981) 52 FLR 285 at 292, ASP15 v Commonwealth of Australia (2016) 248 FCR 372 at [21]-[23].

70    The failure of the Minister to provide an explanation for delay may permit an inference to be drawn that there is no proper reason for the delay. But whether such an inference is open, and whether it should be drawn, depends on the length of the delay and the circumstances in which it occurs.

71    In AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 (“AQM18”) the appellant’s application for a protection visa by a Delegate of the Minister was refused under s 501(1) of the Act. The Delegate’s decision was set aside by the Tribunal which held that the discretion in s 501(1) to refuse the appellant’s visa on character grounds should not be exercised. Section 501A(2) of the Act conferred the power on the Minister to set aside the Tribunal’s decision if certain conditions relating to both character and the national interest were satisfied. The Minister gave notice to the appellant that he was considering setting aside the Tribunal’s decision and refusing to grant the appellant a protection visa under s 501A(2). Approximately 10 months later the Minister exercised that power, setting aside the Tribunal’s decision and refusing the appellant’s application for a protection visa.

72    One of the arguments raised by the appellant in AQM18 was that the Minister’s decision was made without jurisdiction because the exercise of the power occurred outside of a reasonable time. This argument was rejected by the primary judge who found that the time taken by the Minister to make a decision was lengthy but not unreasonable. His Honour’s decision on this issue was upheld by the Full Court. In relation to the issue of onus of proof, the plurality (Besanko and Thawley JJ) said at [59]:

[59]    … it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.

(See also KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1 (“KDSP”) at [174]-[176] per O’Callaghan and Steward JJ and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 per Gordon and Steward JJ who observed at [109] that: “where there is unreasonable delay in the making of an administrative decision, it is for the respondent to establish a satisfactory justification for the delay”.)

73    It was not necessary for the Full Court in either AQM18 or KDSP to decide whether the power under s 501A(2) must be exercised within a reasonable time. However, in AQM18 the Full Court went on to consider whether there had been unreasonable delay by the Minister. In relation to the length of the delay the plurality said at [66]:

[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.

74    Section 501A(2) is not of direct relevance in the present case because no decision has been made to grant or refuse the visa application. Nevertheless, some of the considerations referred to by the plurality in AQM18 are relevant to the issue of delay in this case.

75    I accept the evidence of Mr Pettinger and Ms Turner that they have genuine doubts as to whether or not the applicant is a Pakistani citizen. It was not submitted by counsel for the applicant that those doubts were not genuinely held. The applicant’s contention instead is that, viewed objectively, this is a simple case of the Minister having taken too long to make a decision to either grant or refuse the visa application.

76    It is important to bear in mind that the doubts held by Mr Pettinger and Ms Turner as to the applicant’s nationality have not yet been, and may never be, resolved. However, the effect of Ms Turner’s evidence is that no finding in relation to the applicant’s nationality should be made until the decision-maker responsible for deciding whether protection obligations are owed in respect of the applicant has had an opportunity to review the QSA Statement of Grounds and consider any information that document contains relevant to that question.

77    It was not suggested by the applicant that Ms Turner’s desire that relevant officers be granted access to the Statement of Grounds should be disregarded on the basis that the contents of that document could have no bearing on the matter of the applicant’s nationality. I would have rejected any submission to that effect on the basis that it is inconsistent with the QSA which states that the Statement of Grounds includes further information that “… may impact on broader visa considerations”. That statement falls short of indicating that the Statement of Grounds does contain such information. However in my opinion, there is no basis for rejecting the possibility that the document contains information relevant to an assessment of the applicant’s nationality or that the relevant decision-maker responsible for assessing the applicant’s protection claims is not entitled to have regard to that document for the purpose of making such an assessment.

78    The applicant relies upon previous decisions of the Delegate and the Tribunal in relation to the applicant’s first protection visa application which accepted that the applicant was an Afghan national. The suggestion seems to be that because the Tribunal which considered the applicant’s first protection visa application (and presumably the Delegate whose decision was the subject of review) was satisfied that the applicant is who he claims to be, the Minister should not be allowed further time to investigate that matter or, at least, that the previous decision renders a thorough investigation of the applicant’s nationality otiose.

79    It does not follow from previous decisions that the Minister is not entitled to revisit the applicant’s nationality either on the basis of information previously available or new information that has since become available including any relevant information appearing in the QSA Statement of Grounds. Nor does the fact that the Minister has not at any point between 15 May 2020 and 2 September 2021 sought further information from the applicant about his nationality preclude the Minister or his officers from investigating that matter as they see fit including by conducting a further interview with the applicant after they have reviewed the Statement of Grounds provided such actions are taken within a reasonable time.

80    As mentioned, on 10 September 2020 the applicant was requested to attend a protection interview. That invitation was issued approximately four months after the applicant lodged his protection visa application. There is no evidence to suggest that the delay between the lodgement of the protection visa application and the date of the protection interview was out of the ordinary. Nor is there any evidence to suggest that the time taken to arrange the interview with ASIO, which took place on 26 November 2020, was out of the ordinary or the subject of unreasonable delay.

81    Although the evidence shows that the interview with ASIO was completed on 26 November 2020, there is no evidence to indicate what further steps ASIO was required to take between then and the date on which it issued the QSA. I note that the statement of grounds set out in amended originating applicant does not raise any issue in relation to the time taken by ASIO to issue the QSA.

82    The question addressed in the QSA was whether the applicant was, directly or indirectly, a risk to security and whether it would be consistent with the requirements of security for him to hold a protection visa. In essence, ASIO was required to look into issues concerning national security and, it may be inferred, whether a previous adverse security assessment made in relation to the applicant should be withdrawn. This is a matter that may not be capable of simple or rapid resolution. It may require complex and detailed investigation of events that may have occurred in other parts of the world and in circumstances involving clandestine conduct. In those circumstances, I do not find that the time taken by ASIO to issue the QSA was unjustified or unreasonable.

83    I accept as correct Ms Turner’s understanding of the effect of s 36(1B) of the Act which, in the applicant’s case, would necessarily have resulted in a refusal of his protection visa application at any time prior to the furnishing of the QSA to the Department on 27 May 2021. In the circumstances I do not accept the applicant’s contention that there had been an unreasonable delay in considering his protection visa application or making the relevant decision as at the date this proceeding was commenced.

84    A question arose during the course of final submissions as to whether it is open to the applicant to succeed based on delay occurring after the date the proceeding was commenced in circumstances where it is found that delay occurring up to that date was not unreasonable.

85    There is a statement in Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) by Professors Aronson, Groves and Weeks which suggests that there must have been a failure to perform the relevant duty prior to the commencement of proceedings if a claim for mandamus is to succeed. The learned authors cite P&C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 and R v Building Controller; Ex parte Marinov (1981) 36 ACTR 13 as authority for that proposition. However, neither of those cases involved what was alleged to be unreasonable delay on the part of the relevant decision-maker and the question whether it was necessary for the applicant to establish the existence of unreasonable delay as at the date of the commencement of a proceeding for mandamus was not directly addressed.

86    There have been a number of cases in which delay occurring both prior to and after the commencement of the proceeding in which mandamus was sought was taken into account: see, for example, ASP15 at [48]; AFX17 v Minister for Home Affairs [2020] FCA 807, and BFM16 v Minister for Immigration and Border Protection [2016] FCA 1530. In each of those cases there was found to have been significant delay prior to the commencement of the relevant proceeding followed by further delay afterwards all of which contributed to a finding that there had been unreasonable delay by the decision-maker.

87    In the present case it is unnecessary for me to determine whether any failure on the part of the applicant to prove unreasonable delay as at the date of the commencement of the proceeding is fatal to his claim for mandamus because, in my view, the applicant has failed to establish unreasonable delay at the date of commencement of this proceeding or at any time thereafter.

88    As mentioned, the applicant submitted that there was a delay in endorsing Ms Patel and Ms Smart to undertake the security briefing at a first step toward obtaining access to the QSA Statement of Grounds. The QSA was furnished to the Minister on 27 May 2021 and the departmental officers were endorsed to undertake the security briefing on 24 June 2021. I do not think the delay of less than one month in arranging such endorsement is material.

89    Of course, it is possible that if Ms Patel and Ms Smart had received the endorsement prior to 24 June 2021, they may have been able to travel to the ACT before the ACT Directions came into effect on 9 July 2021, undertake the security briefing, and then review the Statement of Grounds. However, this is a matter of conjecture on the part of the applicant, one that was not explored in Ms Turner’s evidence, and which assumes that she had reason to believe that even a short delay of a few weeks in obtaining the necessary endorsement might result in Ms Patel and Ms Smart being prevented from travelling to the ACT for some indefinite period of time. There is no basis for finding that she was, or should have been, aware that the ACT would soon move to restrict movement across its border. I do not find the applicant’s ex post facto analysis of events convincing.

90    As also mentioned, it was submitted by the applicant that steps should have been taken to arrange for Ms Patel and Ms Smart to travel to the ACT and to quarantine there for 14 days. In my opinion the effect of the ACT Directions, the need for exemptions, and the need to quarantine for 14 days, provides an adequate and reasonable explanation for Ms Patel and Ms Smart not being able to travel to the ACT since 9 July 2021. Ms Turner is required to take into account the safety and wellbeing of her staff before approving any such travel which, under the Protocol in place at all relevant times, may only be approved where it was considered operationally critical. In my opinion, the evidence does not support a finding that Ms Turner or any other officer has acted unreasonably in not arranging for an officer to travel to the ACT since 9 July 2021 or that any related delay in the consideration of the applicant’s visa application flowing from what are essentially operational decisions made necessary by the COVID-19 pandemic justify a conclusion that there has been any unreasonable delay.

91    The last matter that I need to deal with is the applicant’s submission in relation to Ms Turner’s evidence concerning the availability of officers in the ACT who might undertake the security briefing in place of Ms Patel and Ms Smart. In her affidavit of 2 September 2021 (made a week before the hearing) Ms Turner said that she was making arrangements for this to occur. She explained that there were two officers who she had in mind to do this, one, an officer with limited availability due to home based schooling arrangements, and another from a different Division of the Department, who would need to be released from current duties. There was no cross-examination of Ms Turner in relation to this part of her affidavit and I have no reason to believe that she is not genuinely seeking to make the necessary arrangements to enable one of these officers to undertake the security briefing and to view the Statement of Grounds. According to Ms Turner’s evidence, which I accept, a decision in relation to the relevant refugee and complementary protection criteria would be able to be made within a matter of days of that occurring subject to the need for any further interview. I am not persuaded that there has been any unreasonable delay on the part of Ms Turner in relation to these proposed arrangements or that this aspect of her evidence provides any support for the applicant’s broader contention that the Minister’s consideration of the protection visa application and a decision in relation to it has been the subject of unreasonable delay.

92    Counsel for the applicant understandably stressed the fact that her client had been in immigration detention for an extraordinarily lengthy period of time. That is true and it is unfortunate. But the protection visa application the subject of this proceeding was not made until 13 May 2020, approximately 16 months ago. The time the applicant spent in detention prior to that date is not attributable to any delay in the processing of that visa application.

Disposition

93    In my opinion, the applicant has failed to establish that there has been an unreasonable delay in considering his application or in making a decision to either grant or refuse the protection visa he seeks. It may well be that the outer limit of the time within which the Minister is required to make a decision to either grant or refuse the applicant a protection visa is not far off, but in my opinion, that point has not yet been reached.

94    In the result, the application will be dismissed with costs.

Associate:

Dated:    24 September 2021