BMF16 v Minister for Immigration and Border Protection
[2016] FCA 1530
•16 December 2016
FEDERAL COURT OF AUSTRALIA
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
File numbers: VID 546 of 2016
VID 547 of 2016Judge: BROMBERG J Date of judgment: 16 December 2016 Catchwords: ADMINISTRATIVE LAW – unreasonable delay in making a decision – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 7(1), 16(3) – where the Act requires the Minister to either approve or refuse to approve an application for citizenship – where the Act does not specify a time limit for performance of the duty – whether “unreasonable delay in making the decision” within meaning of s 7 ADJR Act; relevant question is whether by reference to the statutory scheme in which the decision‑making power is found there has been, in all of the circumstances, delay in making the decision which is not justified – where delay arises out of periods of inactivity the Minister has the onus of providing a meaningful explanation for the inactivity – where only part of a fourteen-month period of inactivity is satisfactorily explained – whether balance of unexplained inactivity amounts to unreasonable delay – unreasonable delay made out
ADMINISTRATIVE LAW – legal unreasonableness – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(2)(g), 16(1) – where applicant failed to respond to an invitation to provide further identity documentation within the 35 days specified by the delegate – where the delegate made a decision to refuse the application on the 36th day without recourse to the applicant or his legal representatives – whether the delegate’s exercise of discretion to finalise the decision was legally unreasonable – whether such legal unreasonableness amounted to a jurisdictional error – whether the delegate’s failure to make inquiries of the applicant’s legal representatives amounted to legal unreasonableness and/or a constructive failure to exercise jurisdiction or a breach of procedural fairness – the delegate’s failure to make inquiries amounts to jurisdictional error – whether jurisdictional error rendered the decision nugatory for all purposes and to be regarded as no decision at all
ADMINISTRATIVE LAW – procedural fairness – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 16(1) – whether statutory scheme evinces an intention to curtail the content of procedural fairness – whether applicant given opportunity to respond to issues critical to the decision – whether the identification of an issue at a high level of generality is sufficient – whether applicant given opportunity to respond to adverse information – whether opportunity should have been afforded for applicant to respond to what delegate regarded as prior inconsistent statements – the delegate failed to afford procedural fairness – whether relief should be refused on the basis of the rule in Stead – no basis for considering that affording procedural fairness would have been futile
ADMINISTRATIVE LAW – discretion to exercise jurisdiction and grant relief – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10(2)(b)(ii), 16(1) – where a decision is made which had been the subject of an application for failure to make a decision – whether there remains any utility in the proceeding – where the purported decision has been found to have been vitiated by jurisdictional error –– where another law makes adequate provision for review of the decision – whether an applicant must show special circumstances to persuade Court to exercise its jurisdiction – where Court proceeding sufficiently advanced – no cause to refuse to exercise jurisdiction and/or grant relief
Legislation: Administrative Decisions Judicial Review Act 1977 (Cth) ss 5, 7, 10, 16
Australian Citizenship Act 2007 (Cth) ss 20, 21, 22, 24, 47, 50, 52
Judiciary Act 1903 (Cth) s 39B
Road Safety Act 1986 (Vic)
Cases cited: AB v Western Australia (2011) 244 CLR 390
Al-Kateb v Godwin (2004) 219 CLR 562
Annetts v McCann (1990) 170 CLR 596
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (2013) 1 Qd R 228
Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Conille v Canada (Minister of Citizenship and Immigration) [1999] 2 FCR 33
Convery v Ziino (1985) 70 ALR 383
Coutts v Close [2014] FCA 19
CSR Limited v Della Maddalena (2006) 80 ALJR 458
Dragan v Canada (Minister for Citizenship and Immigration) [2003] 4 FCR 189
Frost v Kourouche (2014) 86 NSWLR 214
Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417
Gondara v Canada (Minister of Citizenship and Immigration) 2006 FC 204
Hagedorn v Department of Social Security [1996] FCA 1028
Jadwan v Department of Health (2003) 145 FCR 1
Karda v Minister for Immigration and Ethnic Affairs [1995] FCA 1132
Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393
Kioa v West (1985) 159 CLR 550
Koon Wing Lau v Calwell (1949) 80 CLR 533
Lansen v Minister for Environment (2008) 174 FCR 14
Ma v Minister for Immigration and Citizenship [2007] FCAFC 69
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration and Multicultural Affairs v Awan (2003) 131 FCR 1
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration v Le (2007) 164 FCR 151
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
MZABA v Minister for Immigration and Border Protection [2015] FCA 711
NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2
Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24
Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014)
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82
Repatriation Commission v Morris (1997) 79 FCR 455
S297/2013 v Minister for Immigration (2015) 255 CLR 231
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Sneddon v Minister for Justice (2014) 230 FCR 82
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
SZKUO v Minister for Immigration and Citizenship (2009) 180 FCR 438
SZMBX v Minister for Immigration and Citizenship (2009) 112 ALD 475
SZMUF v Minister for Immigration and Citizenship [2009] FCA 182
Thornton v Repatriation Commission (1981) 35 ALR 485
Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Wei v Minister for Immigration and Border Protection (2015) 327 ALR 28
Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455
Yu v Minister for Health and Others (No 2) (2013) 216 FCR 188
Date of hearing: 5 and 19 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 240 Counsel for the Applicants: Mr C Horan QC with Ms C Harris Solicitor for the Applicants: Russell Kennedy Lawyers Counsel for the Respondents: Mr R Knowles Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 546 of 2016
BETWEEN: BMF16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
16 December 2016
THE COURT DECLARES THAT:
1.There has been unreasonable delay by the respondent in making a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or to refuse to approve the applicant becoming an Australian citizen.
AND THE COURT ORDERS THAT:
2.The decision of the delegate of the Respondent made on 20 July 2016 to refuse to approve the applicant’s application to become an Australian citizen be set aside with effect from the date of the decision.
3.On or before 28 February 2017, or such later date as may be agreed between the parties, the Respondent make a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or refuse to approve the applicant becoming an Australian citizen.
4.The Respondent pay the Applicant’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 547 of 2016
BETWEEN: BMG16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
16 December 2016
THE COURT DECLARES THAT:
1.There has been unreasonable delay by the respondent in making a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or to refuse to approve the applicant becoming an Australian citizen.
AND THE COURT ORDERS THAT:
2.The decision of the delegate of the Respondent made on 15 July 2016 to refuse to approve the applicant’s application to become an Australian citizen be set aside with effect from the date of the decision.
3.On or before 28 February 2017, or such later date as may be agreed between the parties, the Respondent make a decision under s 24(1) of the Australian Citizenship Act 2007 (Cth) to approve or refuse to approve the applicant becoming an Australian citizen.
4.The Respondent pay the Applicant’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
BMF16 (“F”) and BMG16 (“G”) are Afghan men of Hazara ethnicity who for over four years have been Australian permanent residents. By reason of s 22(1) of the Australian Citizenship Act 2007 (Cth) (“Act”), each satisfies the general residence requirement to be eligible to apply for and has applied for Australian citizenship. The respondent (“Minister”) is required by s 24 of the Act to approve or refuse to approve an application for citizenship.
Each of F and G instituted a proceeding in this Court. F did so on 25 May 2016. As at that date, some 18 months had passed without the Minister either approving or refusing the application for citizenship made by F on 1 December 2014. G also initiated his proceeding on 25 May 2016. As at that date, some 23 months had passed without the Minister either approving or refusing the application for citizenship made by G.
Each of F and G seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) and under s 16(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). In broad terms they each seek orders requiring the Minister to make a decision under s 24(1) of the Act to approve or refuse to approve their applications for citizenship. Relying upon s 7(1) of the ADJR Act, F and G contended that, in respect of the Minister’s failure to make a decision, there has been “unreasonable delay” warranting the relief that each of them seeks.
On 20 July 2016, some 8 weeks after F’s proceedings were commenced, a delegate of the Minister decided to refuse his application for citizenship. That decision (“F’s refusal decision”) was made on the basis that the delegate was not satisfied of F’s identity as required by s 24(3) of the Act. On 15 July 2016, some 7 weeks after G’s proceeding was instituted, a delegate of the Minister made a decision (“G’s refusal decision”) refusing G’s citizenship application because first, the delegate was not satisfied of the applicant’s identity as required by s 24(3), and second, the delegate was not satisfied that G was of good character as required by s 24(1A) in combination with s 21(2)(h) of the Act.
Shortly after the refusal decisions were made, both F and G amended their applications to seek additional orders that the refusal decisions be set aside. They rely upon s 5 of the ADJR Act to raise a number of challenges including legal unreasonableness and various failures by the delegate to accord procedural fairness. In each case, it is contended that the refusal decision is tainted by jurisdictional error and, at law, is no decision at all. On that basis, F and G contended that the Minister is yet to determine whether to approve or refuse their citizenship applications and therefore they continue to press their claims for orders requiring the Minister to determine those applications.
Whilst the Minister accepted that the determination of F and G’s citizenship applications were delayed, the Minister denied that there was unreasonable delay. The Minister contended that the applications have now been determined and that the refusal decisions are valid and effective. Accordingly, the Minister contended that the relief sought should be declined including because the proceedings have no utility and should be dismissed on discretionary grounds.
There are common issues raised by each proceeding particularly in relation to whether there was unreasonable delay. The two proceedings were heard concurrently and evidence in one was received as evidence in both.
These reasons commence by setting out the terms of relevant statutory provisions which will later be considered. I will then consider:
(i)Whether there has been unreasonable delay in the Minister determining F and G’s citizenship applications;
(ii)Whether F’s refusal decision is invalid and to be regarded as no decision at all;
(iii)Whether G’s refusal decision is invalid and to be regarded as no decision at all;
(iv)Whether the relief sought should be refused on discretionary grounds.
RELEVANT STATUTORY PROVISIONS
So far as is relevant, s 24(1) of the Act requires the Minister to either approve or refuse to approve an application made under s 21 of the Act. The Minister must not approve an application unless he is satisfied of the identity of the person (s 24(3)). Moreover, the Minister must not approve an application unless he is satisfied of the person’s eligibility for Australian citizenship (s 24(1A)). An applicant will only be eligible for Australian citizenship if the Minister is satisfied that the person is of good character (s 21(2)(h)).
Section 24 of the Act provides as follows:
24 Minister’s decision
(1) If a person makes an application under section 21, the Minister
must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A)If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
…
General eligibility for Australian citizenship is relevantly set out in section 21(2) of the Act. It provides as follows:
21 Application and eligibility for citizenship
…
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 7(1) of the ADJR Act provides for a person aggrieved by a failure to make a decision to apply to the Court for an order of review in respect of such a failure, on the ground that there has been unreasonable delay in making the decision. In relation to such a failure, s 16(3) of the ADJR Act empowers the Court to make orders including an order directing that the decision be made.
Section 5 of the ADJR Act relevantly provides that a person aggrieved by a decision may apply to the Court for an order of review in respect of the decision on a range of specified grounds. Section 16(1) empowers the Court, on an application for an order of review in respect of a decision, to make various orders including an order quashing or setting aside the decision.
There is no issue that the ADJR Act applies in relation to each of the refusal decisions and also to the asserted failure by the Minister to make a decision in relation to each of F and G’s citizenship applications.
Section 7(1) of the ADJR Act provides:
7 Applications in respect of failures to make decisions
(1) Where:
(a) a person has a duty to make a decision to which this Act applies;
(b)there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
Section 5 of the ADJR Act relevantly provides:
Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a)taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j)any other exercise of a power in a way that constitutes abuse of the power.
…
Relevantly, s 16 provides:
16Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review
(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
…
(3)On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b)an order declaring the rights of the parties in relation to the making of the decision;
(c)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
…
In order to consider the Minister’s contention that relief should be refused on discretionary grounds it is necessary to refer to s 10 of the ADJR Act. Relevantly s 10(2)(b)(ii) provides:
(2) Notwithstanding subsection (1):
…
(b)the Federal Court or the Federal Circuit Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
…
(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
Although the Amended Applications of both F and G refer to s 39B of the Judiciary Act, it is not necessary that I set out that provision. No particular reliance on that provision was pressed in the submissions made. Given the uncontested applicability of the ADJR Act to the refusal decisions and to the asserted failure to make decisions, it was not necessary for F and G to support their claims for relief by reference to s 39B of the Judiciary Act and unnecessary for me to consider those claims.
HAS THERE BEEN UNREASONABLE DELAY?
As Murphy J observed in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 (at 578), where a statutory obligation to perform a public duty exists, without a time limit “any duty would be illusory”. For that reason, where a time limit is not specified, a “reasonable time” will be implied. The same approach was taken by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574. These authorities have been relied upon in support of the proposition that in the absence of specified time limits decisions required by statute are to be made within a reasonable time: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J); Repatriation Commission v Morris (1997) 79 FCR 455 at 461 (Beaumont J); NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [12] (Beaumont J); and see generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014) at 300 [6.51].
That common law principle is reflected in s 7(1) of the ADJR Act, the terms of which are set out above. I am satisfied that s 7(1) is enlivened in these proceedings. First, the Minister has a duty to make a decision under s 24(1) of the Act, that being a decision to which the ADJR Act applies. That is uncontentious. Second (and also not in contention), there is no law that prescribes a period within which the Minister is required to make that decision; and, third, “the [Minister] has failed to make that decision”. The third requirement is contentious but, for the reasons I later address, I hold that each of the refusal decisions are tainted by jurisdictional error and that, lacking an legal foundation, each decision is properly regarded, in law, as no decision at all.
I turn then to consider the meaning of “unreasonable delay” in s 7(1) of the ADJR Act. I do so by reference to authorities which have considered that provision, but also by reference to other cases, including where the common law principle which s 7(1) embodies has been considered. I think that two matters should be borne in mind as guiding principles. The first is what Dixon J said in Koon Wing Lau at 574 that “[w]hat is a reasonable time will depend upon all the facts …” or, in other words, a delay will be unreasonable where it is unreasonable in all of the circumstances: Thornton v Repatriation Commission (1981) 35 ALR 485 at 489–490 (Fisher J); Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24 at [37] (Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes and Sir Bernard Rix).
Second, an important consideration in determining whether “there has been unreasonable delay in making the decision” is the scheme of the legislation within which the relevant decision making power is found. The word “unreasonable”, is a broadly-expressed standard and particularly when faced with the interpretation of a broadly-expressed standard, the task of statutory construction must give effect to the evident purpose of the legislation and be consistent with its terms: AB v Western Australia (2011) 244 CLR 390 at [23]–[24] (French CJ, Gummow, Hayne, Kiefel and Bell JJ). As Gummow J said in Al-Kateb v Godwin (2004) 219 CLR 562 at [121] (in a passage adopted by Middleton and Wigney JJ in Sneddon v Minister for Justice (2014) 230 FCR 82 at [116]), in relation to the word “reasonably” in the command that a duty be performed “as soon as reasonably practicable”:
The qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.
To the same effect, in Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203 at [28], Ryan, Drummond and Hely JJ observed, in relation to a statutory requirement that a grant of an interest in land be made “within a reasonable time” of an interest in land being acquired:
We accept the test imported by the phrase “within a reasonable time” is an objective one to be applied in the light of all the circumstances made relevant by the legislative context.
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.
To my mind, the question that s 7(1) poses is really this: by reference to the statutory scheme in which the decision-making power is found, has there, in all of the circumstances, been an unreasonable delay in the making of that decision. The provision obviously calls for an objective assessment to be made: Thornton at 490 (where Fisher J applied a reasonable person test).
The tenor or underlying rationale for the approach taken in the authorities is consistent with the proposition that a delay which has not been justified or satisfactorily explained is to be regarded as unreasonable: Thornton at 492; Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 476 (Neaves J); Karda v Minister for Immigration and Ethnic Affairs [1995] FCA 1132 (Sackville J); Oliveira at [43]; Conille v Canada (Minister of Citizenship and Immigration) [1999] 2 FCR 33 (Tremblay‑Lamer J); Dragan v Canada (Minister for Citizenship and Immigration) [2003] 4 FCR 189 at [54] (Kelen J); Gondara v Canada (Minister of Citizenship and Immigration) 2006 FC 204 at [12]–[16] (Barnes J). Many of those cases suggest that the onus (or at the least the evidentiary onus) of demonstrating that a delay is justified, may fall upon the decision-maker. That approach is expressly taken by the Canadian cases to which I have just referred where, in considering whether mandamus should issue, a delay will be considered unreasonable if:
(i)The delay has been longer than the nature of the process required, prima facie;
(ii)the applicant is not responsible for the delay; and
(iii)the authority responsible for the delay has not provided satisfactory justification.
In these proceedings the Minister accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay. The concession was properly made. As I will explain, the delays in question were caused by very lengthy periods of inactivity. The extent of inactivity in the processing of the applications calls for a meaningful explanation to be provided by the Minister as to why that inactivity occurred and why the delay thereby caused ought not be regarded as unreasonable.
The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira (at [19]). In that case, the Privy Council considered that making allowance for “the customary way of doing things in Antigua”, in general and absent special considerations, the “outside limit of reasonable time” for the processing of a citizenship application was 12 months (at [42]). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at [45]). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at [56]–[57] (cf Thornton at 493).
A few observations should be made about the scheme of the Act. The subject matter of the Act is citizenship. Whilst not expressly stated, there can be no doubt that the Act regards citizenship as a public good and that conferral of it to deserving applicants is to be encouraged. Lengthy delays in the process of conferring citizenship would serve to undermine that underlying objective. On the other hand, conferral of citizenship is not usually attended with great urgency. A delay will not ordinarily cause great detriment to the person affected because, for most things, permanent residency rather than citizenships suffices to provide a person with access to most of the benefits of living in Australia. The other observation I would make is that the scheme of the Act does not, it seems to me, envisage the process of assessing an application to involve great complexity and therefore require procedures or processes which are inherently time consuming. For the purposes of assessing an application for citizenship, the scheme does not require or provide for a hearing or any other formal inquiry. No investigative powers are provided to the Minister, nor is any power conferred upon the Minister to compel the production of documents or call witnesses. Section 46 of the Act provides that the application should be accompanied by the information required either by the application form or by the regulations made under the Act. What seems to be envisaged by the scheme, at least for an ordinary case, is a desktop assessment which, it may be expected, could be conducted in a number of hours rather than requiring days or weeks. That is, however, not to say that the scheme does not contemplate that some delay might be caused by reasonable resourcing constraints, the need for the Minister to seek further information from an applicant or obtain information independently. In a case which is not straightforward, it may be expected that the need to collect information will itself consume time. The Department of Immigration and Border Protection’s (“Department”) own service standard envisages that 80% of citizenship applications will be processed within 80 days of an application being made. Applicants who sit and pass the citizenship test are told that in most cases a decision is made within four weeks.
I turn then to the relevant facts, much of which also provide relevant background to the question of the validity of each of the refusal decisions.
F is an Afghan man of Hazara ethnicity and Shi’a Muslim religion. He claims that he was born in Afghanistan in or about the mid-1980s and that in or about the mid-1990s he fled with his family to Pakistan to escape persecution at the hands of the Taliban. In 2010 F arrived to Christmas Island by boat. On Christmas Island F underwent a Refugee Status Assessment (“RSA”) conducted by an officer of the Department. By an RSA decision record dated 29 November 2010 F was found to be someone to whom Australia owes protection obligations. The RSA decision record identified “[i]dentity concerns” in respect of F including that he had arrived to Australia without identity documents. The RSA officer ultimately found, however, that, “for the purposes of [the RSA]”, F was who he had claimed to be. On 1 December 2010 F was granted a Protection (subclass 866) visa and permanent residence in Australia.
On 1 December 2014, precisely four years after the grant of his Protection visa, F made an application to the Department for Australian citizenship.
For reasons unnecessary to explain, his application was resubmitted on 17 December 2014. On resubmitting his application, F included a note explaining that he did not have a birth certificate and provided a statutory declaration in which he declared that he was born in a small village in Afghanistan and that no one in that village had birth certificates. In response to the requirement on the application form that he provide three documents “which collectively contain your photograph, signature, current address, date of birth, birth name and gender”, F provided certified copies of his Australian Titre De Voyage, his Victorian driver’s license, his Medicare card and a bank statement. Those documents were annexed to F’s statutory declaration. The application form did not require that proof of identity be provided through records issued in the applicant’s country of origin and no such records were provided by F when he made his application.
On about 27 January 2015, the Department wrote to F advising that an appointment and an Australian citizenship test had been scheduled for 3 March 2015. The letter advised F to bring with him the originals of all of the identity documents that he submitted with his application. The Department wrote again on or about 30 January 2015 changing the date of the appointment and test to 16 February 2015. F attended a citizenship appointment and test in Melbourne on 16 February 2016. He failed the citizenship test after two attempts. At that appointment, F provided his statutory declaration regarding his inability to obtain a birth certificate and also originals of his Titre De Voyage, his driver’s licence and his Medicare card. F’s file records that those documents, as well as his statutory declaration, were sighted and uploaded to the file. A note on the file states that F’s identity was verified.
F’s citizenship test was re-booked for 27 February 2015. On that day F passed the test. He was then handed a document by an officer of the Department. The document congratulated him on passing the test and advised that in most instances a decision on citizenship applications is made within 4 weeks of the applicant passing the citizenship test.
F contacted the Department on 15 April 2015, 2 September 2015, 14 December 2015 and 24 February 2016. On each occasion he queried the progress or status of his application. On each occasion he was informed that his application was being processed or assessed.
On or about 30 March 2016, the Department received a letter from F’s solicitors. The letter complained of an unreasonable delay in the processing of F’s application and requested the Minister to make a decision on that application. The letter foreshadowed that legal proceedings may be commenced. On 5 April 2016, the Department contacted F’s solicitors requesting a “Form 956” stating that form to be necessary to authorise contact between the Department and F’s legal representative. The Department did not otherwise respond to the contents of the letter from F’s solicitors. F’s solicitors responded by letter dated 5 April 2016 in terms not presently relevant.
On 25 May 2016, F instituted the present application before the Court.
On 14 June 2016, the Department wrote to F in relation to his application. The letter stated that its purpose was to give F the opportunity to provide further evidence or information in support of his application. F was told that the Minister’s delegate needed to be satisfied that he met the relevant requirements set out in the Act including that F was of good character and that the delegate was satisfied as to his identity. The correspondence “encouraged” F to obtain original documents from his country of origin that would assist in confirming his identity, citizenship or status prior to arriving in Australia. An information list was provided listing various categories of documents, including documents from F’s country of origin, that it was suggested F may be able to provide in support of his identity. The letter went on to say that if F was unable to provide such documents he should provide a statutory declaration explaining what attempts he had made to obtain documents and state the reasons why he was unable to present them. Under a heading “Timeframe for response” the letter said this:
In order to enable further consideration of your application for conferral of citizenship we request that you forward any additional documents you wish to provide in response to the above information to the Department within 35 days of the date of this letter.
If you do not provide the outstanding documents, or evidence that you have applied for and are still waiting to receive the documents, a decision on your application will be made on the basis of the information already provided to the Department which may lead to the application being refused.
On 5 July 2016, F left Australia to visit his ailing mother in Pakistan. It is the subject of some contention whether or not F received the Department’s letter dated 14 June 2016 before he departed from Australia. On the evidence before me I would infer that he did.
On 20 July 2016, 36 days from the date of the Department’s letter, the Minister’s delegate made a decision purporting to refuse the citizenship application of F on the basis that the delegate was not satisfied of F’s identity having regard to the material available. I shall extract and discuss the reasons of the delegate for the refusal decision in more detail later when I consider the validity of that decision.
G is also an Afghan man of Hazara ethnicity and Shi’a Muslim religion. He claims that he was born in Afghanistan in the late 1970s and that in or about the late 1980s he fled with his family to Iran and lived there for approximately 20 years.
G arrived to Australia as an irregular maritime arrival in February 2010. Five days after his arrival to Australia, G completed an interview with an officer of the Department at Christmas Island. At interview G confirmed that he did not have any identity documentation in Australia. On 1 July 2010, G was granted a Protection (subclass 866) visa and permanent residency in Australia.
The uncontroversial facts relating to G’s application for citizenship are similar to those pertaining to F, other than for the fact that G made his application about six months earlier. That application was made on 1 July 2014, again precisely four years after G was granted his Protection visa. It had been preceded by two applications in 2010 and 2013 to sponsor G’s wife and children to come to Australia from Iran.
The application for citizenship lodged by G was made on a similar pro forma application form as that of F’s application and, in relation to proof of identity, listed the same requirements. In response to those requirements G attached to his application a copy of a Victorian driver’s licence, a bill addressed to him from a water authority and a document stated to be a “travel document” extracts of which suggest it to be a Titre De Voyage issued by Australia.
On or about 7 July 2014, the Department wrote to G inviting him to attend a citizenship appointment and test on 31 July 2014. Although G attended on that day he was not registered to sit the test as the “Identity Declaration” in his application had not been completed by a person who was an Australian citizen. An appointment and test was rescheduled for 9 September 2014. The Department’s letter rescheduling the appointment requested that the originals of the identity documents provided with the application be provided at the appointment. On 9 September 2014, G attended at Melbourne and passed his citizenship test. Like F, he was also provided with a document that advised him that in most instances applicants are advised of a decision within four weeks. He provided Australian issued identity documents at the appointment being his Titre de Voyage, his driver’s licence and his Medicare card.
A record on G’s file notes that on 9 September 2014, his identity was verified. Records dated 12 September 2014 note that an onshore police check was clear; that offshore penal clearance was not required; that there were no offences declared; that there was no further concerns; and that G was assessed as “of good character”.
G’s file also contains a communication written by G’s case officer to another Departmental official dated 1 October 2014. The communication refers to a note which had stated that G’s “household” (which I take to be a reference to the persons with whom G shared accommodation) were subject to an identity review. The communication noted that G had provided two alternative dates of birth to the Department which was referred to as “an identity concern”. It appears that some fingerprint matching was conducted in August and October 2014. Ms Barrio, a witness for the Minister whom I will shortly introduce, accepted that at or about the time of this review, the identity concern raised by the record to which I have referred, was resolved without adverse implications for G’s identity.
In about December 2014 and February 2015, G telephoned the Department and asked whether a decision on his application had been made. He was told to wait.
On 25 April 2015, G’s migration agent wrote to the Department stating that it had been over six months since G made his application and that he had not heard anything from the Department. The letter stated that G was waiting for his citizenship as that was the only way he could be reunited with his family who were located in Iran. It was said that “this is his option to finally live with his family after all these years of hardship”. The letter asked whether the Department required any further information to be provided. The Department did not respond.
On 30 March 2016, G’s solicitors (who also act for F) wrote a letter to the Department in similar terms to the letter sent on behalf of F. The letter submitted that the delay in the processing of G’s application was unreasonable and sought an immediate decision on the application. The correspondence foreshadowed that legal proceedings may be brought. On 5 April 2016, the Department telephoned G’s solicitors advising that it required a “Form 956” and did not otherwise respond. That communication was responded to by a letter dated 5 April 2016.
On 25 May 2016, G instituted his proceeding.
On 20 June 2016, the Department wrote to G to give him an opportunity to provide further evidence and encouraged G to obtain identity documentation from his country of origin. The letter was relevantly in the same form as that sent to F and outlined at [40] above. After an invitation from the Department, the details of which I will later address, G attended an interview with a delegate of the Minister and other staff of the Department on 12 July 2016. On 15 July 2016, the Minister’s delegate made a decision refusing G’s citizenship application on the basis that she was not satisfied of G’s identity and also not satisfied that G was of good character. I shall deal with the reasons of the delegate and the refusal decision in more detail later.
It will be noted that in F’s case about 15.5 months elapsed between when F successfully completed his citizenship test and when the Department first communicated with F by its letter of 14 June 2016 seeking the provision of further information. In G’s case the period that elapsed between those two events was almost 22 months. It is that inactivity in the processing of the application which is at the core of G and F’s complaints of unreasonable delay.
For the Minister, two witnesses gave evidence. Frances Finney is the Assistant Secretary of the Permanent Visa and Citizenship Programme Branch of the Department (“Citizenship branch”). She has held that position since March 2015. She has national responsibility for the program management and delivery of the migration and citizenship programmes and national management of the Department’s Ethnic Liaison Officer Network. Viviana Barrio is employed by the Department as a Director of Citizenship Services in Victoria and Tasmania. She has held that position since June 2015. That position involves the responsibility of providing strategic and day to day leadership to the Citizenship teams in Melbourne and Hobart.
The evidence of Ms Finney and Ms Barrio was relied upon by the Minister as providing an explanation for the delay in the processing of the applications of F and G. The fact of delay was not contested, but the Minister contended that the delay was appropriate having regard to all of the circumstances which bore upon the timing of the refusal decisions ultimately made. The circumstances which the Minister contended explained the delay were outlined in the evidence of Ms Finney and Ms Barrio.
For the most part, that evidence was pitched at a level of generality that revealed very little about the actual processing of F and G’s applications. Neither Ms Finney nor Ms Barrio had any first hand involvement with those applications before these proceedings were instituted. Case managers directly responsible for the processing of those applications were not called and an explanation as to why was not given. Insofar as the evidence of Ms Finney and Ms Barrio addressed the processing of F and G’s applications prior to about mid-June of 2016, it did so entirely by first or second-hand reference to notes or other records contained on the files held by the Department for each of those applications. Extracts from each of the files (“F’s file” and “G’s file”) were put into evidence by F and G. Generally, I found the source documents on those files helpful and I have preferred those contemporaneous records where any conflict between them and other evidence arose.
Ms Barrio’s affidavit gave the following as the explanation for the delay in relation to G’s application:
The Department's letter at VB-8 was not sent earlier than 20 June 2016 due to the applicant's case being identified as one which required thorough analysis of information available to the Department and which required further assessment by specially trained officers. The case was allocated for assessment when resources and staff became available.
An explanation in essentially the same terms was also given by Ms Barrio in relation to F’s application.
The Minister’s outline of submissions in relation to F (adopted mutatis mutandis in relation to G) sought to explain the delay on essentially the same basis (but with additional particulars):
35.The evidence before the Court provides an explanation for the delay in making a decision and makes clear why, in all the circumstances, that delay was not unreasonable. That evidence shows that:
35.1. [not pressed];
35.2.a portion of those applications [the totality of applications for citizenship] is identified as requiring "thorough analysis" or "further assessment";
35.3.[Each of F and G’s] application was one of those applications identified as requiring "thorough analysis" or "further assessment";
35.4.over the last two years, there were 13,900 applications identified as requiring "thorough analysis" or "further assessment" and:
35.4.1.of those applications, only 3,669 applications have been finalised; and
35.4.2.of the remaining 10,231 unfinalised applications, as at 10 July 2016:
35.4.2.1.2,545 applications had been on foot for between 12 and 18 months; and
35.4.2.2.478 applications had been on foot for more than 18 months;
35.5.of the 193 officers in the Department working on citizenship applications, only 12 of them were "specially trained" to provide "further assessment"; and
35.6.since June 2014, there have been considerable changes to the way in which the Department has administered the citizenship programme and:
35.6.1.those changes were introduced due to increased concerns about, among other things, verification of identity in the processing of citizenship applications;
35.6.2.the changes related to both policy and process of the Department; and
35.6.3.the development and implementation of those changes have caused additional delays to the processing of citizenship applications, particularly where identity is in issue.
There is a record in each of F and G’s files which helps to explain the inactivity on those files. On G’s file, a note made by the case officer on 11 March 2015 records that G arrived in Australia as an “IMA” (illegal maritime arrival); that an “identity toolkit” was completed; and that the “application has been put forward for further integrity checks”. That note is then immediately followed by a record made on 8 April 2015 as follows:
UNDOCUMENTED ARRIVAL
Filed Undocumented arrival drawer
On F’s file a note in the precise terms just quoted was made on 31 March 2015. Unlike G’s file, no earlier reference to a need for integrity checks appears.
Ms Barrio was not employed in the Citizenship branch at the time those entries were made and only joined some three months or so later. In cross-examination, she relied on those entries as confirmatory of her understanding of what had occurred in the Victorian section of the Citizenship branch which she described as follows:
Again. I wasn’t there at that time, but my understanding is that in March – February/March of 2015 we looked at cases of people who had arrived without a visa or had no documents on arrival. We looked at the cases and filtered the ones where we needed to do much more work. The effort involved in assessing one of those cases was much higher than the effort in cases where there are documents.
And later in her evidence, again having been prompted by the file entry which I have quoted at [62] above, Ms Barrio said this:
… [a]nd as I said before in relation to this process, when I started in the section, I was advised that around March or April there had been a review of all of the cases that we had and we had left aside the ones where there were no documents – where people had arrived undocumented where people had arrived as – you know, on boats as irregular or illegal maritime arrivals, and where there was no connection between the documents presented in the application and their identity at the time of birth.
There is no evidence before me that demonstrates that any attempt was made by staff of the Citizenship branch to verify whether F and G were in fact “undocumented arrivals”. Nevertheless, I accept that they were so characterised and, that in a process undertaken in the Victorian section of the Citizenship branch in March to April of 2015, together with other outstanding applications for citizenship where the applicant was also so characterised, the applications of F and G were selected for closer scrutiny because the nature of their arrival in Australia was regarded as raising concerns about their claimed identity. For that reason, as the note on each of F and G’s file suggests, the applications were “filed” in the “Undocumented arrivals drawer” on 31 March 2015 in relation to F, and on 8 April 2015 in relation to G. Whether that meant that the files of F and G were physically relocated or whether the “Undocumented arrivals drawer” was merely a symbolic form of categorisation was not the subject of any evidence.
Ms Barrio’s evidence was not entirely satisfactory including because she became an advocate who sought to defend her unit’s record. The general tenor of her understanding was that in March to April of 2015 cases such as F and G were categorised (to use her words, which I will hereafter adopt) as “complex cases” and taken out of the ordinary processing path for citizenship applications. In Ms Barrio’s words they were “left aside”. What was the ordinary path for citizenship applications was not explained, but it might be expected that applications would ordinarily be processed in order of application or, in other words, in date order. Ms Finney deposed that applications “should be processed in date order normally” but cautioned that State offices of the Citizenship branch had their own arrangement which had not been necessarily consistent before a restructuring that took place in the course of 2015, to which I will later refer.
Ms Barrio did not explain whether there was an ordinary cases queue and how it was managed. The import of her evidence was that it could be expected that a “complex case” would take much longer to be finalised than an ordinary case.
With one possible exception concerning the possibility of electronic searches of no real significance, Ms Barrio accepted that between 31 March 2015, when F’s application was categorised as “complex”, and 14 June 2016, when the letter was sent requesting further identity information of F; and from 8 April 2015 to 20 June 2016 (relating to the same events for G), no assessment of any kind was conducted in relation to F and G’s applications. In particular, no request for further information was made of F or G and no attempt was made to obtain and analyse information already in the Department’s possession in relation to F or G—for instance, in files dealing with their applications for protection visas or in G’s applications for a visa for his wife and children.
I find that the Department took no steps to progress F’s or G’s applications for some 14.5 months from the time at which each of those applications was categorised as a “complex case”. I also hold that for a period of about 4 months in the case of G, in the time between when finger print checks were concluded and when his application was categorised as “complex”, nothing was done by the Department to assess that application.
The letter seeking further information sent on 14 June 2006 to F, and on 20 June 2016 to G, were general in nature, not drafted to address any identified specific deficiency in the information held by the Department and, as Ms Barrio accepted, would not have taken long to prepare. She also accepted, and I find, that it was only after those letters were sent and in late June 2016, that officers of the Citizenship branch made any effort to retrieve Departmental files not held by the Citizenship branch relating to F and G.
Although not based on any knowledge (direct or otherwise) specific to F or G’s applications, Ms Barrio sought to explain why it was that no prior step (and in particular the sending of a request for further information) had been taken to progress those applications. She did that by reference to the method (what she called the “workflow”) by which officers in her team worked. She said that work commenced on applications “when the cases were allocated”. Decisions were made as to when a case is ready to be allocated to an officer and if allocated “we start working on the case more thoroughly, and then we go – you know, we start the case and we finish it”.
With direct knowledge, Ms Barrio explained how it was that F and G’s cases were allocated. She said:
The cases were allocated after we were advised that the cases were before the Federal Court. The – I remember there was an email saying the cases are going to Federal Court, trying to force the department to make a decision, so I guess that as the director of the area, I saw that and I thought, well, obviously this case is a priority.
Yes. And - - -? ---There are – I mean, we’ve got a plan on how to manage a significant cohort of applications, but sometimes we take some, you know, which are not in the order of priority because they become priority because of other reasons.
Yes. Well - - -?---It’s not very often that we’ve got Federal Court cases.
Whilst nowhere mentioned in her evidence in chief, that evidence given in cross‑examination, identified the existence of “a plan on how to manage” what Ms Barrio must be taken to have meant the cohort of “complex cases”. And the plan, as identified by that evidence, had an “order of priority”.
In sum, I take the import of Ms Barrio’s evidence to be that there was in existence (at all relevant times) in the Citizenship branch section in Victoria, a plan for managing the processing of “complex” applications for citizenship which included an order for priority or, in simple terms, an ordered queue for the assessment and finalisation of those applications. When an application reaches the top of the queue, assessment work then commences on that application.
Apart from applicants who complain to the Federal Court being given immediate priority, all that the evidence of Ms Barrio said about the basis or rationale for the priority order in which applications were queued was this:
Why would these not have been prioritised as applications that were, in one case, two years old and in the other case, 18 month old?---Because we had cases which were identified as being more of a priority than those cases so they were priority but after
- - -
Were they even older ones?---I’m not completely sure about the age. There may have been other reasons why others were - - -
So there might be some that are – that leapfrogged the queue, in a way, that they’re not processed in order of date of application?---That’s right.
There is statistical data before me, given in answer to interrogatories served upon the Minister, which suggest that the “leap frogging” referred to in Ms Barrio’s evidence has been very extensive so far as the applications of F and G are concerned. The data is current to 10 July 2016. At that time, G’s application was a week or so more than 24 months old and F’s application about 19 months old. The statistical information is not confined to Victoria but deals only with applications that, in her affidavit evidence, Ms Barrio referred to as applications identified as requiring “thorough analysis” or “further assessment”, but which she otherwise referred to as the “complex cases”.
The following two tables set out that evidence:
TABLE A
TABLE B
Table A demonstrates that between 3,374 and 3,669 “complex cases” were both reached and finalised in a shorter period of time than it took the Department to reach the applications of F and G, and that was so where F and G’s applications were only reached because of extraordinary circumstances (the institution of these proceedings). Furthermore, taken together, Tables A and B demonstrate that F and G’s applications were in the oldest 3 per cent of “complex cases” lodged in the period surveyed.
That evidence suggests that something beyond resourcing or the restructuring of the citizenship program (the detail of which I will shortly explain) has caused very significant delay to the processing of F and G’s applications. The vast majority of complex cases in question (about 96 per cent) either did not suffer delay or, at the time of the survey, had yet to experience delay of the magnitude that F and G had experienced by that time. At the least, that evidence provides a foundation for thinking that in terms of being reached for processing, F and G’s applications were passed over by many thousands of other “complex” applications.
There was no suggestion, either by the evidence or in the submissions made, that the Australia‑wide information given in the Tables is not reflective of the position in Victoria. The Minister accepted that F and G’s applications were in the oldest 5% of undetermined “complex case” applications.
The evidence suggests that a substantial delay in the processing of F and G’s applications may have occurred because of the order in which their applications were queued for processing. That their applications were ordered by reference to an unreasonable rationale, and that as a consequence there has been an unreasonable delay in the determination of them, is a real possibility that the evidence does not permit me to exclude. The fact that an applicant who institutes court proceedings is given priority suggests an arbitrariness which does not engender confidence that a reasonable allocation mechanism was being applied by the Citizenship branch in Victoria. Nor does the following evidence, given by Ms Finney about the queue for “complex” or what she called “assurance cases”, engender any confidence that a reasonable approach was taken to the order in which such cases were processed:
… So the queue is one that is managed within our state offices. So as – it’s undertaken manually. So as case officers would see cases that they couldn’t readily resolve and needed further information, they would be placed into this assurance batch. Now, where the particular applicant was in the batch, I don’t – it’s date order; like, you can report on it by date, but there’s no number in the queue kind of thing.
Are they processed in date order?---Well, this is the interesting part of it because they should be processed in date order normally, and because we have had such a large volume of applicants coming through, and because our state officers were operating, if you like, in a more federated sense in the management of their caseloads, what we have been trying to do is make sure that our state officers are operating more consistently, and as I’ve said in my affidavit, reminding them and asking them to make sure that cases that were lodged earlier should be certainly progressed earlier.
Now, the assessment queue that you refer to by reference to the assurance batching, that, as you gave evidence before, is a new framework that was implemented in November 2015, is that correct?---The – no, the state officers have always had their own complex case arrangements, and what we have been trying to do is to make them more uniform and consistent so that we can track them; so we can actually build reports around them. That’s what what’s new.
The concern expressed in that evidence, that “complex cases” were not being processed in date order as Ms Finney thought they should have been, is also reflected in other evidence given by Ms Finney that in March 2016 it came to her attention that there were older cases (cases of 12 months or older) “that really should be being processed”. As a result, Ms Finney directed that priority be given to older cases.
The evidence is that each of F and G’s applications were allocated to a case officer and that a plan existed in the Victorian office of the Citizenship branch for prioritising the processing of “complex cases”. I would presume that given the existence of the plan for processing “complex cases” it would have been possible for the Minister to have called evidence (most helpfully from the case officer) which explained the plan and the progress of F and G’s applications under that plan. The evidence does not tell me the allocative rationale actually utilised by the Citizenship branch in Victoria for “complex cases”. I do not know where in the queue of “complex cases” F and G’s applications were located, nor when those applications would have been reached if these proceedings had not been brought. I do not know the basis upon which some applications were prioritised over others and in particular why F and G’s applications were left unreached whilst a vast number of other more recent applications were able to be both reached and finalised. On the evidence before me, I am not able to exclude the real possibility that for a very substantial period of time, F and G’s applications were simply left aside and forgotten. In essence, the evidence called by the Minister has failed to explain why it was that F and G’s applications sat in the “complex cases” queue without being reached for 14.5 months. Nor has any explanation been provided as to why nothing was done for over 4 months to progress G’s application before his application was placed into the “complex cases” queue.
There are two general circumstances relied upon by the Minister to explain the delay. I will address first the changes to the administration of the Citizenship Program which, in most part, Ms Finney’s evidence detailed. I will then turn to resourcing.
Ms Finney deposed that concerns were raised during 2014–2015 about the reliability of identity information being assessed to process citizenship applications for certain applicants. As her evidence developed, it became clear that the concern was focused upon refugees who had arrived in Australia without a visa. An internal audit report prepared by the Department in June 2014 stated that it was important to have a detailed understanding of identity issues and risk and found that identity issues may not fully present themselves until a citizenship application is lodged, at which point they must be addressed. In January 2015 the Martin Place Siege Joint Commonwealth-NSW Review recommended that the Department needed to better assess the possible risk posed by individuals at the pre-visa, post-visa and pre‑citizenship stages.
From about March 2015, the Department took a range of steps to improve assessment of identity including assessment of citizenship applications. In that month, the Department strengthened the integrity of visa and citizenship programs by improving capabilities in areas such as risk assessment. All citizenship managers received a verbal identity and national security briefing by Departmental identity specialists and an external agency. Managers were informed that a greater level of scrutiny would need to be applied to citizenship processing based on a “risk-based approach”. The briefing reinforced the importance of determining an applicant’s identity and known aliases for the purpose of assessing citizenship applications. In order to strengthen identity verification processes, the Department developed a “risk-based quality assurance program” in June 2015. Specially trained Caseload Assurance Officers were introduced into each processing office of the Citizenship branch in mid-June 2015. That occurred as part of a nationally consistent approach to enhancing the integrity of the citizenship program. In addition, a number of staff were diverted from regular processing and trained to support the Caseload Assurance Officers. To further develop identity assessment capability within the citizenship program, a two-day identity essentials course was presented across Australia for all Citizenship officers.
The Department recruited a specialist project manager to work with each processing office and relevant areas of the Department to design a new business process for enhancing citizenship decision-making. A risk-based quality assurance check on a sample of citizenship applications which had been approved, but had not yet led to citizenship being conferred, was conducted in September 2015. The Caseload Assurance Officers had oversight over this work and helped to refine the decision‑making process for assessing risk. Following the check of sample cases in November 2015, a new “high risk assurance business process” (“assurance process”) was implemented in the Citizenship branch.
When the assurance process was introduced, Ms Finney emailed Ms Barrio and other Departmental officers. Her email stated that the assurance process “applied to all new identified applications for Australian Citizenship”. Nothing was said in relation to extant applications. In cross examination, Ms Finney confirmed that the assurance process was directed to new cases. The process required identity assessments to be performed “upfront”. That is, at the outset and prior to the applicant attending an initial interview and taking the citizenship test. Ms Finney confirmed that F and G’s cases were not in that category, they had long since passed their citizenship tests and the identity requirements at that stage.
However, as part of a somewhat curious answer to a question about to whom the new assurance process applied, Ms Finney’s response suggested that the new process of identifying and resolving identity concerns was not necessarily new when introduced in early November 2015. She again referred to each State office having had responsibility “for managing their own caseload and identifying those risks within that caseload and then assigning the resourcing and so forth” and said that what the assurance process did, was move the Citizenship branch to “this more nationally‑consistent, uniform approach”. For that purpose, a date was picked for the assurance process to commence so that new applications would thereafter go through the new uniform process. That evidence must be read with the evidence set out at [81] which also suggested that what was new about the assurance process was a uniform and consistent national approach. The extent to which some State offices within the Citizenship branch (and in particular Victoria) were already using the process or something similar to the procedures required by the assurance process, and from when, was not stated by Ms Finney or by any other evidence. It was after giving all of that context that Ms Finney said:
Now, to answer your question about applications lodged prior to that date, the intention was that they would still (a) be processed and (b) that they would have that same level of checking to be undertaken if – if and as required.
There are two ways in which the Minister sought to deploy the evidence about the introduction of new assessment processes for “complex cases”. First, and as put by Ms Finney, “[t]he labour-intensive nature and slowness of the assessment process has been a cause of lengthening processing times”.
There are two difficulties with the Minister’s reliance upon the new procedures lengthening the processing time of citizenship applications. The new procedures (even if applicable to extant applications) had not been applied to either F or G because, as at mid-June 2016, their applications had not been reached for further assessment. Second, if the effect of the new lengthier processes on other applications brought about the delay in F and G’s applications being reached (a proposition not directly supported by the evidence), the unanswered question remains: Why were other applications prioritised ahead of F and G’s and to what extent did that bring about an unreasonable delay?
The second way in which this general circumstance was sought to be relied upon by the Minister, was that delay was caused to the processing of F and G’s applications because it was necessary for the Department to develop new processes before resuming the processing of extant “complex cases”. To counter that proposition, F and G contended that the suspension of processing was itself unreasonable. The contested positions raise difficult considerations in the context of evidence called by the Minister which was often ambiguous.
Ms Finney deposed that as a consequence of the developments which I have discussed, applications for citizenship which required further assessment such as F and G’s “were placed into an assessment queue” pending the implementation of the changed arrangements. She then deposed that F and G’s applications “recommenced assessment” in March 2016. In cross-examination, Ms Finney arguably acceded to the suggestion that F and G’s applications were left on hold until shortly before June 2016 awaiting the Department’s development of its new processes. Ms Finney’s evidence suggested that F and G’s applications had been put on hold for 12 and possibly 15 months pending the development and implementation of changes to assessment processes for “complex cases”.
Relying upon that evidence, F and G contended that their applications had been put on hold for 12 months or alternatively to November 2015 awaiting the development and implementation of the new processing arrangements. They argued that that in itself was unreasonable and had brought about an unreasonable delay. They contended that for the Department to have taken such a long time to formulate and implement those changes and, at the same time done nothing at all to process their applications, was demonstrative of unreasonable delay.
However, much of Ms Finney’s evidence that sought to address what had actually occurred in relation to F and G’s applications was unreliable. The evidence earlier referred to, that the assessment of F and G’s applications “recommenced” in about March 2016, is a good example. Ms Finney had no basis (not even a hearsay basis) for that evidence as cross‑examination of her revealed. As she was ultimately forced to concede, she was not in the Victorian office of the Citizenship branch and could not “go to that level of detail”.
On the evidence before me I do not accept that F and G’s applications were put on hold pending new processing arrangements for 12 months or possibly longer. I do not accept that Ms Finney knew the extent to which the processing of “complex cases” had been suspended in the Victorian office of the Citizenship branch as a result of the development by the Department of new procedures.
As Ms Finney said at various times in her cross-examination, until November 2015 the State offices within the Citizenship branch were managing their process for dealing with “complex cases” according to their own systems. As I have said, the tenor of her evidence was that part of the rationale for the introduction of the assurance process was to make the inconsistent “complex case” arrangements in various State offices more uniform so that they could be tracked, so that reports could be produced, so that the arrangements were transparent and so that “we [the national office] can see what is actually happening”.
The person who was in a position to know whether the development of new processes had resulted in a suspension of the processing of “complex cases” in Victoria was Ms Barrio. Her evidence in chief referred to the development of new processes and said no more that this:
The consequences of these changes have been a general delay in processing complex citizenship applications, for example where there is limited or no identity documentation.
Ms Barrio did not identify any specific period in which the processing of “complex cases” was suspended in Victoria awaiting the development of new procedures or if there was any suspension at all. The tenor of her evidence is reflected in the explanation she gave for the delay which is set out at [59] above and which was to the effect that it was the unavailability of staff and resources which precluded F and G’s applications from being allocated for assessment.
In cross-examination and in answer to criticism that no work was done on F and G’s applications from the time they were categorised as complex until June 2016, Ms Barrio did say that work had been done in relation to developing procedures. She regarded that work as work that was done on the applications of F and G. Nevertheless, she did not identify the extent to which the developmental work undertaken had hindered the processing of “complex cases” in general or F and G’s applications in particular.
In the end, whilst I do accept that the development of new processes was likely to have delayed the processing of F and G’s applications, I do not have a sufficient evidentiary basis upon which to reliably assess the extent of any delay that may have been caused. I note that in the submissions made by the Minister, no contention was made that the assessment of “complex cases” had been suspended in Victoria for any specified period. If any suspension occurred, it seems to me likely that it would have been lifted by mid-June of 2015. As Ms Finney deposed, specially trained Caseload Assurance Officers were introduced into each processing office in mid-June 2015. Their function was “to make decision[s], support other decision-makers and work with specialist areas to progress more complex applications”. As the evidence stands, it is difficult to accept that Caseload Assurance Officers were introduced “to progress” the processing of “complex cases” at a time when progress on “complex cases” had been halted and was to remain suspended for many months thereafter. That all suggests that if there was a suspension of the processing of “complex cases”, it may have lasted about 3 months. The evidence which I consider to be reliable does not permit a broader finding than that. A delay of about 3 months to develop and implement new procedures of the kind that the Department did implement seems justifiable.
However, that F and G’s applications may have been reasonably delayed for some 3 months, does not serve to explain the totality of the inactivity in question which, as earlier stated, exceeded 14.5 months from the time that each of F and G’s applications were categorised as “complex cases” to the time their applications were reached for further processing.
As to whether a scarcity of resources brought about a delay in the processing of F and G’s applications, the Minister was in a position to provide detailed evidence about resourcing pressures for the processing of “complex cases” and in particular the processing of F and G’s applications in Victoria. Ms Barrio gave no specific evidence about work pressures upon the staff of the Citizenship branch in Victoria. There was evidence before me of the overall numbers of applications for citizenship but that evidence was expressly not relied upon as a basis for explaining any delay to the processing of F and G’s applications. The overall number of “complex cases”, as set out in Table A and B, was in evidence and was relied upon in a comparison with the overall staffing of the citizenship branch across Australia.
There were a number of findings made by the delegate which contributed to her non‑satisfaction about G’s identity which were based on a lack of documentation or a lack of effort by G to obtain documentation which confirmed his “life history”.
Before dealing with those, it is convenient that I set out some further background to the interview with the delegate. As mentioned previously, by letter of 20 June 2016, G was contacted by the Department. That letter encouraged him to obtain any original documents from his “country of origin” that would assist with confirming his identity, citizenship or status prior to arriving in Australia. Mention was made of the kind of documents that he might be able to provide. It was stated that if G was unable to provide documents of the kind requested he could provide a written statutory declaration explaining what attempts he had made to obtain the documents and the reasons why he was not able to present them. A letter dated 6 July 2016 and received by G at or about that time, was forwarded by the Department advising G of the interview with the delegate. That letter also encouraged G to obtain “original documents” from either his country of origin or his previous country of residence, which would assist in confirming his identity, citizenship or status prior to arriving in Australia. G was asked to bring to the interview any documents that he was able to obtain. Some 24 categories of documents were listed. It was stated that if G was unable to present “any” of the documents listed he should provide a written statement in a statutory declaration and a detailed explanation of what attempts he had made to obtain the documents and the reasons why he was not able to present them.
There are several conclusions made by the delegate about documentation relating to G’s children which G challenges. The first challenge (G’s ninth contention) relates to the delegate relying on country information to say that “the birth of every child born in Iran, regardless of the nationality of their parents shall be reported to officials”. G complains that the country information was not mentioned during the interview and he was not asked to comment or make submissions on that matter. I accept that to be so but I reject G’s contention that he was denied procedural fairness on this issue. No submission was made that reliance on that information was utilized to reach a conclusion adverse to the approval of G’s application and it is not clear to me that any such conclusion was made. In those circumstances, no practical injustice is made out.
G brought to the interview copies of his children’s vaccination cards but not their birth certificates. The Reasons record that G confirmed that both of his children were born in a particular hospital in Iran which he named and that although “they were given paperwork when the children were born, he is not sure where those documents currently are”. The delegate gave significant weight to G’s failure to produce his children’s birth certificates. Relevantly the Reasons state:
I take into consideration [G] has not indicated that he is attempting to obtain his children's birth certificates or making arrangements to obtain new certificates if he is unable to locate their original ones; therefore, I make this decision on the basis of the information already provided to the Department.
I find that regardless of [G’s] status in Iran, he would have been given birth certificates for his two children born in Iran. Given there is no evidence to the contrary, I accept that he has two children, however, on the basis of the information provided there is no evidence to confirm the children were born in Iran, their status at the time of birth or the status of their parents at the time of their birth.
I find it is reasonable to expect that [G] could have provided his children's birth certificates which could confirm his status in Iran and also prior to arriving in Australia. I also find it is reasonable that if he no longer has the documents, he could have demonstrated a willingness to obtain new documents given it could potentially support his claim to be unlawfully resident in Iran at the time of their births. I also note that he has travelled to Iran on four separate occasions and therefore, has had the opportunity to obtain documents he did not have on arrival to Australia.
G complained (G’s tenth contention) that during the interview he was not asked to comment or make submissions on whether he could or would obtain his childrens’ birth certificates or whether he could or would make arrangements for new birth certificates to be issued.
I do not accept that G did not have an opportunity to explain whether he could obtain his childrens’ birth certificates. In fact, as the Reasons record, G explained that he was not sure where those documents were. However, I am satisfied that at no point was G given an opportunity to address his “willingness to obtain new documents” if he no longer had the original birth certificates. The failure of G to demonstrate a willingness was clearly held against him by the delegate including because G had travelled to Iran on four separate occasions and therefore, so the delegate reasoned, had the opportunity to obtain documents he did not have on arrival in Australia. G was not asked during the interview to comment or make submissions on either his willingness to obtain new birth certificates or the opportunity, if any, that travelling to Iran may have provided him to so do. Nor was there any request made in the pre-interview correspondence which sought to illicit an explanation from G as to his willingness to obtain replacement documents. Both letters referred to “original” documents and it was only the second letter (generated some 6 days prior to the interview) which sought documents from G’s previous country of residence (ie Iran). How, in that context, G’s prior trips to Iran could have rationally been regarded as demonstrative of G’s unwillingness to obtain the documents in question is not clear. I am satisfied that G was not given notice that his willingness to obtain replacement birth certificates for his children was in issue and afforded a reasonable opportunity to be heard about that matter. That matter formed part of the delegate’s view that G had failed to provide documentary confirmation of his “life story” which was a critical factor on which the decision turned. The lost opportunity amounted to a practical injustice.
G also challenged the delegate’s finding that there “is no evidence to confirm” that G’s children were born in Iran (G’s eleventh contention). The basis for that challenge was that the vaccination cards produced by G contained evidence that his children were born in Iran on the dates there stated.
The Reasons address the vaccination cards in the following passage:
Although the copies of [G]’s children's vaccination cards contain the child's name, date of birth and names of their parents, it does not contain information that would otherwise be listed on the birth certificates issued by the hospital which specifically provide information about the parents' status. The vaccination cards do not contain any information about the children's place of birth or their status in Iran. During the interview, [G] advised that anyone living in Iran is able to get immunised regardless of their status and therefore I place no weight on the vaccination cards in relation to confirming either [G]’s or his children's status in Iran.
What the delegate meant by “status” is not clear although it seems to me what the delegate had in mind was G’s claim that he and his family were illegal residents in Iran. Why no weight was placed on the vaccination cards for other purposes is more troubling. The delegate’s conclusion that the vaccination cards do not contain “any information” about the childrens’ place of birth is problematic. Each of the vaccination card identifies the child’s date of birth. True it is that a place of birth is not expressly specified. However, the vaccination cards list the vaccines administered to each of the children at a particular provincial health centre in Iran. They set out the dates upon which those vaccinations were administered at that health centre. In the case of the eldest child the vaccination card shows that he was first administered a vaccination at the health centre in Iran on the same day as he was born. In relation to the younger son, the vaccination card shows that a vaccine was first administered 30 days after the child’s date of birth. In each case, the information on the card provided some information in support of the conclusion that the child was likely to have been born in Iran. In the case of the older child and on the information provided on the vaccination card, a finding that he was born in Iran is an almost irresistable conclusion. However, whilst it is clear that the delegate wrongly evaluated the content of the evidence before her, it does not follow that G’s refusal decision was legally unreasonable as G contended.
Another finding challenged by G relates to his school records from Iran. In relation to the records, the Reasons say this:
When asked as to whether he had any school records, he advised that he didn't have any. Given he confirmed that he was given results every few months, I find it would be reasonable for him to attempt to contact the school and confirm whether they are able to provide him with any records of his attendance or school results.
G contended that during his interview with the delegate, whilst he was asked whether he had records from his school, he was not asked to comment or make submissions on whether it was reasonable for him to attempt to obtain copies of those records (G’s twelfth contention).
Read in context, it seems to me that the delegate regarded G’s failure to have attempted (rather than his failure to now attempt) to obtain school records as a consideration adverse to the approval of G’s application for citizenship. The basis for the delegate concluding that G had made no attempt is unclear. There may have been no basis at all. G was not asked if he had made any attempt and nor was he asked about his willingness to make an attempt to obtain the school records. But whether the delegate’s finding was made in the absence of any foundation is not in question. The question raised here is whether G had been sufficiently on notice that his failure to obtain his school records, or provide an explanation as to his efforts to have done so, was a matter in issue. The letter of 6 July 2016 included “school records” as one of the categories of documents G was requested to obtain. The letter also requested that if G was unable to provide the documents that he provide an explanation as to what attempts had been made to obtain them. That letter sufficiently put G on notice that his attempts to obtain the school records was an issue which may lead to an adverse conclusion being made against him. That only 6 days had passed since a request of that kind was first made (ie a request for documents from a country of prior residence), may well have explained why no attempt had been made if that was in fact the case. However, there was no denial of procedural fairness in relation to the finding in question.
The delegate accepted that G was married and that it may not have been possible for him to obtain documentation at the time of the marriage. In coming to that conclusion, the delegate said this:
I take into consideration on [Mrs G’s] application for Global Special Humanitarian visa (subclass 202), she indicated that she is 'married legally' even though there are other options to declare that would appear to be aligned with [G’s] claim regarding their marriage; including 'Married by tradition/custom' and also 'Married religiously'.
That observation was the subject of G’s thirteenth contention. G contended that this issue was not mentioned at all during the interview and he was not asked to make any comment or submission on the matter. I accept that to be so. However, whilst the observation made by the delegate is curious in the context of the matter then under consideration, I am not satisfied that it led to any adverse conclusion being drawn by the delegate. A practical injustice is neither raised nor established by this contention.
Finally, G raised two contentions that a breach of procedural fairness occurred in relation to the delegate’s conclusion that “little weight” ought to be placed on an Afghan passport issued to G (G’s fourteenth contention) and an Afghan passport issued to G’s wife (G fifteenth contention). Each passport was produced by G to the delegate.
After stating that the Afghan passport issued to G was issued on 12 January 2011 in Canberra, the delegate identified her concern about the issuing procedures involved in obtaining that passport in the following observations made in her Reasons:
[G] stated that he obtained the passport by travelling in person to the Afghan Embassy in Canberra where he provided a signed statement and was interviewed by officials in the office. He advised that he also took two (2) witnesses; a person by the name of [H…H…] who was known to his father and another person whose name he could not recall, who was the son of his father's friend.
I find no reason to believe the document is not a genuine Afghan passport, however, I take into consideration [G]’s explanation of the processes he went through to obtain the document and in particular, the fact that he was not able to recall the name of one of the witnesses, who he claims was the son of his father's friend. I take into consideration that this person was a very important component of his ability to obtain an Afghan passport and his inability to recall his name, or the name of the witness' father who he claims was his father's friend, brings me to question the issuing processes in relation to obtaining the Afghan passport.
The delegate relied upon G’s inability to recall the name of one of the witnesses used to identify G in obtaining the Afghan passport. In the interview, G was asked to name the witnesses that he took with him to obtain the passport. He provided the name of one of the witnesses but could only provide the first name of the other. He explained that the second witness was the son of a friend of his father and that his father’s friend sent his son along rather than come himself. G also said that the son was much younger than he was. He said he could find the full name and phone number of the witness. A generous but fair reading of the delegate’s Reasons suggests to me that what the delegate was saying was that, for the purposes of providing proof of G’s identity, G’s Afghan passport was not reliable. The delegate was concerned that a person whose connection to G was so remote that G could not remember his name was relied upon by the Afghan authorities to identify G as part of the process used to confer a passport.
That issue, the reliability of G’s passport for proof of identity, was canvassed by the delegate with G. It would have been sufficiently apparent to G that the reliability of his Afghan passport was put in issue by the nature of the questions asked in the context of the answers that he gave. In my view, G was given sufficient notice that the reliability of his passport was in issue and an opportunity to be heard as to that issue was not denied to him.
In relation to the passport issued to G’s wife, the delegate’s concern about the process for obtaining that passport was set out in the Reasons as follows:
Furthermore, I also take into consideration [G]’s explanation during interview that he made arrangements to obtain his wife's Afghan passport by paying someone $US3,000 and sending them a copy of his Afghan passport together with photographs. It was noted that the passport was issued in Kabul and [G] confirmed that this was correct and that his wife remained in Iran and did not present in person in order to obtain the passport. I also take into consideration that when [G] was asked to confirm whether he believed the document to be genuine, given he paid a significant sum of money to obtain it, he responded that he believed it was a genuine document and also made reference to the fact that in Afghanistan everything is possible if you have money.
The delegate did not expressly raise a concern about the validity of the process utilized to obtain G’s wife’s passport, however, the discussion about the unusual way in which the passport was obtained would have made it apparent to G that the reliability of that passport to establish his wife’s identity was being put in issue. To my mind G was sufficiently put on notice that the reliability of his wife’s passport was an issue that may be determined adversely to his interests. He was not denied an opportunity to be heard as to that issue.
I have upheld G’s first and second contentions and found that G was denied procedural fairness in relation to the delegate’s non-satisfaction that G was of good character. I have not otherwise upheld any assertion of error in relation to that non-satisfaction. In relation to the delegate’s non-satisfaction as to G’s identity, I have upheld G’s fifth, sixth, seventh and tenth contentions and found G was denied procedural fairness. I have not otherwise upheld any of G’s challenges to the delegate’s non-satisfaction in relation to G’s identity.
The Minister contended, and I accept, that G’s refusal decision could only be set aside if error is found in each of the relevant states of non-satisfaction arrived at by the delegate. If either state of non-satisfaction survived G’s challenges, the refusal decision must stand because where there is non-satisfaction as to either identity or character, s 24 of the Act proscribes the approval of a citizenship application.
The Minister also raised discretionary considerations in support of his contention that relief should be refused. I will turn to consider those shortly.
The Minister did not contend that relief should be refused based upon the rule in Stead at 145, where the High Court stated that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”, but explained that relief may only be refused if the Court is satisfied that the denial of natural justice “could have had no bearing on the outcome”. In Ucar, following a comprehensive survey of the authorities, Redlich JA (with whom Warren CJ and Chernov JA relevantly agreed) stated (footnotes omitted):
In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.
As to the first circumstance contemplated by Stead and referred to by Redlich JA, there is no incontrovertible fact or point of law which provides a discrete basis for G’s refusal decision which is not affected by the procedural unfairness which I have found. As for the second circumstance contemplated in Stead, it was for the Minister to demonstrate that it would be futile to set aside G’s refusal decision because on a reconsideration, the result would inevitably be the same (as to that onus see also Hayne J in CSR Limited v Della Maddalena (2006) 80 ALJR 458 at [109]).
In any event, and putting aside questions of onus, as McHugh J said in Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [104] (in a passage later referred to by the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [80]), “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome”. Where the issue is whether additional evidence and submissions could have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile: VAAD at [81] citing Kirby J in NAFF at [85]. It will be “no easy task” (Stead at 145) to satisfy a court that a denial of natural justice could have had no bearing on the outcome.
Whilst I recognise that the delegate may well have come to the same conclusion on the question of G’s character or his identity if those opportunities to respond which I have found should have been given were given, I cannot say with certainty that affording those opportunities would have been futile. There is, therefore, no warrant for relief to be refused by reason of the rule in Stead.
For the same reasons that I concluded that F’s refusal decision was, at law, to be regarded as no decision at all, I hold that G’s refusal decision was no decision at all.
SHOULD THE PROCEEDINGS BE DISMISSED ON DISCRETIONARY GROUNDS?
In relation to each of F’s and G’s proceedings, the Minister contended that the proceedings should be dismissed on discretionary grounds. The first ground relied upon was that there was no longer any utility in the proceeding. In each case F and G have applied to the Court for an order directing the Minister to make a decision on his citizenship application. As a decision has been made, the Minister contended that each of F and G had obtained the relief which he had sought and that there was otherwise no utility in the proceedings given that the only other relief sought was a bare declaration.
There is no issue that the Court has the capacity to dismiss each of the proceedings on discretionary grounds. Putting to one side for the moment the issue whether the declaratory relief sought by each of F and G would have utility, the Minister’s first ground for the exercise of the Court’s discretion must be rejected because it is premised on the fact that the refusal decisions were made, whereas, as I have held, each of those decisions lack legal foundation and are properly to be regarded, in law, as no decision at all.
I turn then to the second ground relied upon by the Minister for the exercise of the Court’s discretion. The Minister contended that the relief of a kind sought by each of F and G should, save in exceptional circumstances, be withheld on discretionary grounds where other suitable remedies are available and have not been used. In this respect, the Minister points to two circumstances. The first is that each of F and G are not precluded from making a further application for citizenship. Second, each of F and G had the capacity to apply to the AAT for a full merits review of their refusal decision. In those circumstances, the Minister contended that it was not necessary or desirable to consider the legal efficacy of the refusal decisions. The Minister relied upon the provision of merits review by the Act as indicative of Parliament’s intent that the usual manner in which a person might seek to challenge a decision under s 24(1) is via review by the AAT. Further, the Minister contended that the present proceedings had not clearly identified any question of jurisdiction or power that could be decided without significant fact finding and were inappropriate for adjudication by the Court. Lastly, the Minister disputed the contention that merits review would involve greater cost or delay.
I note at the outset that s 10(2)(b)(ii) of the ADJR Act relevantly provides the Court with a broad discretion to refuse to grant an application made in reliance upon either ss 5 or 7 of the ADJR Act for the reason:
…
(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
...
The onus of persuading the Court to exercise its discretion under s 10(2)(b) falls on the person seeking it: Convery v Ziino (1985) 70 ALR 383 at 387 (Neaves J); Hagedorn v Department of Social Security [1996] FCA 1028 at 18 (Mansfield J).
Where another law makes “adequate provision” for review, an applicant who commences judicial review proceedings under the ADJR Act does not have to establish “special circumstances” to avoid dismissal of the application pursuant to s 10(2)(b)(ii); the provision requires the Court to consider and weigh all relevant circumstances: Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1 at [52] (Tracey, Griffiths and Mortimer JJ). As Mansfield J observed at 18–19 of Hagedorn in relation to s 10(2), as with any judicial discretion, it is neither possible nor desirable to list all of the factors which may be relevant to the exercise of the discretion, as the relevant factors and the weight to be accorded to them will vary from case to case depending on the particular circumstances of the case. With that qualification and speaking generally, Mansfield J regarded delay, expense, hardship, and whether, despite adequate alternative review procedures, there is involved a matter of law appropriate for determination by the Court, as being likely to be factors of relevance. His Honour also noted that it will also be relevant to have regard to the need for the Court to resolve matters before it where no other avenue for recourse is available.
With those observations in mind, I turn to consider the particular circumstance of the two cases here in question, bearing in mind also that in the ordinary case where a refusal decision was made pursuant to s 24(1) of the Act, there would be force in the submission that the Court should exercise its discretion to refuse relief. That would be so because adequate provision is made by s 52(1)(b) of the Act for a merits review before the AAT. But these were not ordinary cases and the circumstances which take them out of the ordinary need to be recounted and considered.
These proceedings began as applications which only sought relief in relation to the Minister’s delay in dealing with the citizenship applications. For applications of that kind, neither s 52 nor any other provision to which I was referred, provides an entitlement to seek review or redress in the AAT or any other fora. Given the terms of s 10(2)(b) of the ADJR Act, upon the institution of the proceedings there was no basis for the exercise of the discretion conferred by that provision and, assuming a residual discretion is provided by s 16(1), no occasion for the Court to have exercised a discretion to dismiss the proceeding. The same may be said now about the relief sought in reliance upon s 7(1) of the ADJR Act. The relief sought, and that which I propose to grant, is not relief that could be granted by the AAT.
True it is that when the refusal decisions were made, F and G had the capacity to seek review of those decisions before the AAT. But by that time the proceedings in this Court were well progressed. A substantial part of the evidence had been prepared and filed. A number of interlocutory disputes had been heard and resolved. Written submissions, although filed shortly after the refusal decisions were made, must have been at a late stage of preparation. An early date for a hearing of the applications (28 July 2016) had been secured.
It was reasonable in those peculiar circumstances for each of F and G to have chosen to agitate their challenge to the refusal decisions in this Court as part of their existing application. They had secured an early hearing date in this Court and could only speculate as to when a hearing date before the AAT might become available to them in circumstances where, for them, time is of the essence. They had already invested a great deal of time, effort and resources in these proceedings (as had the Minister), some of which would have to have been replicated if new proceedings were instituted elsewhere. Additionally, and in my view importantly, they would have foregone the opportunity to have their complaints about the Minister’s delay vindicated. That was their entitlement, if they were right about the delay. Their only means of achieving that outcome was through their proceedings in this Court. In circumstances where they had not secured citizenship there was utility to them in obtaining the declarations they seek in relation to the Minister’s unreasonable delay. There was obvious economy to all parties, in the challenges to the delays and the challenges to the refusal decisions being dealt with together in a single proceeding.
Given those circumstances, the Minister has failed to persuade me that I should exercise my discretion to refuse F and G the relief to which they are entitled. I should add that, in arriving at that view, I have given no weight to the Minister’s reliance upon the capacity of F and G to make another application for citizenship. That facility is not “a review” of the kind contemplated by s 10(2)(b)(ii). Just as the facility for a further application does not deny an applicant an entitlement to a review by the AAT, an applicant ought not be denied judicial review in circumstances where it is otherwise appropriate.
RELIEF
Having held that the refusal decisions were invalid and, at law, no decisions at all, and having rejected the Minister’s submission that I should refuse relief on discretionary grounds, it is necessary that I now consider the appropriate form of relief.
Each of F and G seek an order that the refusal decision made in his case be set aside. I will make orders to that effect. Each also seeks a declaration that there has been unreasonable delay by the Minister in making a decision under s 24(1) of the Act to approve or to refuse to approve his citizenship application. There is utility in making declarations to that effect and I will do so.
Lastly, each of F and G seek an order directing the Minister to make a decision under s 24(1) to approve or to refuse to approve his citizenship application. I intend to make orders to that effect but consider that the timeframe within which those decisions are to be made should be specified in the orders I make. As the parties have not made submissions on that question, or on the question of costs, I will hear the parties before determining the orders of the Court.
I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg Associate:
Dated: 16 December 2016
139
21
4