NAIS v Minister for Immigration and Multicultural and Indigenous Affairs

The High Court of Australia considered an appeal by a family of citizens of Bangladesh against a decision of the Refugee Review Tribunal (RRT) that affirmed the Minister for Immigration and Multicultural and Indigenous Affairs' refusal to grant them protection visas. The core of the dispute concerned the substantial delay between the initial RRT hearing and the final decision, and whether this delay constituted a denial of procedural fairness or jurisdictional error.

The legal issues before the Court were whether the significant delay by the RRT in handing down its decision, which occurred years after the initial hearing, resulted in a real and substantial risk of prejudice to the appellants. The Court was required to determine if such prejudice could be inferred from the delay itself, and whether the delay amounted to a failure to conduct the review as required by law, specifically in light of the Migration Act 1958 (Cth) objective of administrative review being "fair, just, economical, informal and quick." The Court also had to consider the relevance of delay to the assessment of the appellants' demeanour and whether the RRT's capacity to make a proper assessment was impaired.

The Court reasoned that while delay in administrative decision-making is regrettable and can raise concerns about the merits of an outcome, judicial review is concerned with the legality of the exercise of power, not the merits of a particular case. However, the Court acknowledged that delay can, in certain circumstances, amount to a constructive failure to exercise jurisdiction. This occurs where the delay is so inordinate that it demonstrates an abdication or abandonment of the statutory function, or where the decision-maker misconceived their role or failed to apply themselves to the prescribed questions. The Court noted that the ADJR Act contains specific provisions for unreasonable delays in decision-making, but these were not contended to apply to the RRT regime. The Court ultimately found that the delay in this case did give rise to jurisdictional error.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court and the orders of Hely J. In their place, the Court ordered that a writ of certiorari issue to quash the RRT's decision, a writ of prohibition to prevent the Minister from giving effect to that decision, and a writ of mandamus directing the RRT to determine the application for review according to law. The Minister was ordered to pay the appellants' costs.